The plaintiff has instituted the present action to recover of the defendant $3,084 44, for materials furnished and certain carpenters’ work dime for the defendant.
It appears that the plaintiff contracted to huild a dwelling house and certain other buildings for defendant. He agreed to huild a house with rooms 16 feet square, and furnish the materials for $1,000. After he had framed the same, the parties agreed to change the plan, by which the frame thus made was laid aside, and a new frame erected for rooms 18 feet square. This building was substantially completed, and is in the possession and occupancy of the defendant. The plaintiff contends that inasmuch as the first contract was not carried out, that he is entitled to recover as on a quantum merrit, and that he cannot be held to a contract which has been abandoned by the parties.
We think that where parties have entered into a contract for building a house, and subsequently deviated from it, that it should stand as a measure of the value of the work and materials as far as they correspond -with and are applicable to such contract.
In this case the witnesses show that the house built would cost over the house contracted for, only about $600 extra.
The plaintiff is therefore entitled to price of the house...........$ 1,600 00
To the old frame...................................$129 00
Less its value for the building....................... 50 00
- $ 79 00
Out houses................................................... 180 00
To building cribs, here introduced as in compensation............... 300 00
$2,159 00
The defendant has proven payments................................. 1,749 80
$ 410 20
The plaintiff is entitled to recover a judgment for $410 20.
It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the plaintiff and against the defendant for four hundred and ten dollars and twenty cents, and legal interest thereon, from January 1st, 1857, until paid, and that there be judgment against the defendants reconventional demand, and that the defendant pay the cost in both courts.