I. It will be seen that plaintiff framed its petition on two counts — one on the special contract, and the other on quantum meruit. When the evidence was all in, defendants moved the court to require plaintiff to elect upon which count it would proceed and take *446the verdict of the jury. The court overruled this motion, and this action by the court is now assigned as error. The trial judge in this matter was entirely correct. It is well settled in this state that the petition may allege the same cause of action in two counts so as to meet any possible state of the proof. Brinkman v. Hunter, 73 Mo. 178, and cases cited. And in no class of cases is this rule followed so frequently, and so properly, as in the character of cases we here deal with. The wisdom of the rule is here manifest. A may contract with B to furnish certain materials, or do certain work, according to certain defined stipulations. A dispute arises, and A is compelled to sue. He claims a performance of the contract, but B denies. Under the law A is entitled, either to recover on the contract the stipulated price, or if he has contributed certain material to the advantage of B’s property, but has not to the letter complied with the contract, even then A is entitled to recover the value of such materials and work to thfe extent of the benefit conferred on B, limited of course by the contract price. It is entirely proper to present the case in this double form, and permit in one suit a settlement of the entire controversy. A can only recover on one of the two counts, yet there is no reason why he should not be allowed to present his case in the alternative.
II. In the contract for doing the work, as entered into between the plaintiff and the defendant “ Electric Springs Company,” it was provided that said defendants shall pay therefor in throe notes of equal amounts, due respectively in six, twelve, and eighteen months from the completion of the work and bearing eight-percent. interest. Now defendants’ counsel contends that such a provision in the contract amounted to a waiver of plaintiff’s right to a mechanics’ lien. An instruction to that effect was requested, but refused by the court, and this action of court is assigned as error. If, when the work was completed, the.“ Electric Springs *447Company” had given these notes to plaintiff, and plaintiff had accepted the same for, and on account of, its work and materials, then I take it that such would have operated as a waiver of the mechanics’ lien. There would have been, in that event, an extension of time for payment of the work beyond the statutory limitations for beginning suit to enforce a lien which would be inconsistent with such proceedings, and very properly should be construed as a waiver. McMurray v. Taylor, 30 Mo. 263; Ashdown v. Woods, 31 Mo. 465; Gorman v. Sagner, 22 Mo. 137. But, however this may be, “all the cases agree that there will'be no waiver when the agreement to give the note or other security has not been performed by the promisor. It would be going too far to say that the builder must have intended to waive the lien in the event of the refusal to comply with the agreement.” Phillips on Mech. Liens [2 Ed.] sec. 285. This is a complete answer to the position contended for in this case. The defendants contracting to give the note refused to comply with their agreement in this particular, and it will not be understood as plaintiff’s intention to wraive the right to a lien, whether defendants gave or offered to give the note or not. We hold then the point against defendants.
III. The next point we notice is an objection relating to plaintiff’s second instruction, and which was given by the court. That instruction pertains only to the second or quantum meruit count of the petition. The court there substantially declared to the jury, that even though plaintiff did not comply with its contract, did not do the work, etc., in the manner it agreed to, yet if “said defendants used, possessed and enjoyed the same and still have it, in their possession, the jury will find for plaintiff on the second count in the petition,” etc. This instruction is subject to one just criticism. In this character of work, building contracts, if the mechanic fails to do the work as agreed, he cannot recover on quantum menoit on the mere showing thatthe *448owner of the building “possessed, used and enjoyed” his house. He, the owner, could not do otherwise except he abandon his premises, and this he will not be compelled to do. The work and material furnished must not only be used and enjoyed, but must be of real value to the owner over and above the damages resulting from non-compliance by the builder. Yeates v. Ballentine, 56 Mo. 530; Mohney v. Reed, 40 Mo. App. 112.
. Notwithstanding this defect in plaintiff’s second instruction, it was in this instance an error entirely harmless, since the jury did not found their verdict on the second count of the petition, but held the defendants on the first count, deciding that plaintiff did comply with the terms and conditions of the contract.
IV. The last objection we notice is, in the jvords of counsel’s brief, “that the judgment is erroneous in giving the lien against the ground precedence over the prior mortgages held by the Johnson County Savings Bank.” It is sufficient to say in answer to this, that the judgment does not attempt to adjudge or declare any such priority. The judgment neither reaches nor attempts to charge anything except the interest of the owner. The priority of the judgment creditor or incum - brancer is not settled in this instance. The court declined to let the jury pass on this question.
After a careful review of all the questions presented, the most important of which are here noticed, we discover no reason for disturbing the judgment of the circuit court, and the same is therefore affirmed.
All concur.