This is an appeal from a judgment entered on a directed verdict for $565.61. The complaint avers that in May, 1916, at Jamestown in consideration of $3,100, defendant contracted to construct for the use of the plaintiff a dwelling house according to plans, and specifications, and to complete the same within ninety days from May 10, 1916. That the defendant failed to complete the construction of the house.and in effect abandoned its construction in November, 1916. That to complete the same in accordance with the contract, the. plaintiff necessarily expended and paid several sums, stated in lump, amounting to $530.53. In addition he paid defendant $2,794.58. Plaintiff’s loss of the use of the house was $120. Total $3,445.11. That he paid three sums, $179.35, $47.50, $27, amounting to $253.85. Total cost being $3,698.96. From that sum we subtract the agreed price of $3,100, and the balance is $598.96, for which the plaintiff demands judgment.
The plaintiff was the only witness, and in regard to several items he was not a competent witness, and his testimony was mere conjecture. It was based on hearsay. As stated in the brief of counsel for respondent: “Take, for instance, the item of $40 for painting. It was not shown the size, or surface to be painted, nor the various colors or kinds of paint used, nor the time or labor required, nor the usual wages of a painter.” And the counsel is asking, How could the jury determine any other amount than that to which the plaintiff testified ?
Of course the testimony gave the jury no basis for such determination, and the testimony was a mere conjecture. It was not evidence. It was a guess or estimate based on the hearsay or unsworn estimates of painters. If there were any guessing to be done, the court should have left the jury to do it; and of course the facts should have been proven by competent evidence so as to obviate the necessity of any guessing. The directed verdict is not sustained by clear and competent and decisive evidence. Hence, the judgment is reversed and a new trial granted.