(concurring specially.) While concurring with the views of the presiding judge that the court erred in requiring the plaintiff to elect upon which cause of action he would proceed to lhc. trial, I am of the opinion that the judgment should also be reversed upon the ground that the court erred in directing a verdict in favor of the defendant. ■ In my judgment there was evidence on the part of the plaintiff tending- to prove that the plaintiff had substantially complied with the terms of the contract. The contract provides that it should “drill said well to the necessary depth to obtain sufficient flow of water to fill a two-inch pipe in a horizontal position.” It was further provided that “said well is ¡o be piped with three-inch standard Black pipe to a depth of 300 feet or deeper, if deemed necessary by the party of the first part and to be piped with two-inch standard Black pipe from thereon onto water-bearing sand rock, said two-inch pipe to be perforated where it passes through the water bearing artesian sand rock. Said two-inch pipe to extend up into the three-inch pipe not less than fifteen feet.” It is disclosed by the evidence on the part of the plaintiff that the terms of this contract were complied with down to the depth of about 890 feet, when hard rock was encountered, and that the 3-inch pipe and 2-inch pipe were used down to> the hard rock as specified in the contract; that the hole drilled *373in the hard rock was rimmed out to 2 inches in diameter, and through and below the hard rock 1 1-4-inch perforated pipe to the extent of about 80 feet was used instead of the 2-inch pipe specified in the contract, and plaintiff's evidence tended to prove the use of the i 1-4-inch perforated pipe through and below the hard rock was for all practical purposes as beneficial as the rise of 2-inch pereforated pipe would have been below that point, and it was clearly proved by the evidence that the flow of water obtained was from two 10 three times the amount required by the terms of the contract. It is true there was some conflict in the evidence, but it was proper for the jury to determine upon all of the evidence wheíher or not the plaintiff had substantially complied with the terms of his contract, and what damages, if any, had been sustained by him by reason of the failure of the plaintiff to' literally comply with the terms of the contract.
This was the view taken by this court of a building contract in the case of Aldrich et al. v. Wilmarth, 3 S. D. 523, 54 N W. 811, in which the plaintiff’s failure to literally comply with the terms of his contract was fully considered and discussed. Again, there was evidence on the part of the plaintiff tending to prove that the substitution of the 11 -4-inch pipe for the 2-inch pipe through and below • the hard rock was with the knowledge and consent of the defendant. It is true there was some conflict in the evidence upon this subject; but, if the jury believed from the evidence that the substitution of the 1 1-4-inch pipe for the 2-inch pipe, through and below the hard rock, was with the knowledge and consent of the defendant, he is estopped from .now claiming that the plaintiff failed to strictly comply with the terms of his contract in that regard. Mr. Sutherland in his w-ark on Damages (volume 3, § 710, 3d Ed.), in discussing this subject, says; “On the other hand, the want of objection and apparent acquiescence where there is knowledge of the actual character of the work would be a fraud on the contractor if he were thus encouraged to proceed, and still be at the hazard of losing all compensation except on terms of showing a punctilious performance of the contract.” The case therefore, should have been submitted -to the jury upon the evidence disclosed by the' record.