The opinion of the court was delivered by
Sanford, J.:1. Practice. Ob-in&wVeJK m“de' A considerable portion of the argument in this case, has been directed to the consideration of questions relating to some of the pleadings which were filed therein, in the court below. They do , " not appear to have been raised in any manner during the progress of the cause, until it reached this court, but have been presented for the first time here. Such being the case, and it being clear that the petition — which is the pleading objected to — stated a good cause of action, and no point being made as to the jurisdiction of the court, we are not required, under the rules which govern in such cases, to enter upon a discussion of, or to decide as to the sufficiency or propriety of such petition in other respects.
2. Rule, where uadictory.011'" II. Our attention has also' been called to certain instructions, which it is alleged were asked to be given to the jury on the part of the plaintiffs in error, and refused by the- court. We refer to numbers two and three as they appear in-the record. The bill of exceptions is conflicting as to whether they were so refused or not. In one place it states that they were refused; while in another, and where it seems that an. amendment was made to the bill by the judge himself, *142and just before his signature, the statement is distinctly made, that the two instructions referred to were given. Under these circumstances, we shall regard the latter statement as the correct one; and hence it will not devolve upon us to further notice this part of the case.
3. COHTEACTJ agS°uñd¡r™¿ Iaw' TTT: But objection is made with respect to the action of the court in refusing to give the instruction which is designated as number one in the record, and ° also, m giving a certain other instruction which was included in the general charge; both of which are set out in the record, and are as follows :
No. 1. “ Under the written contract Johnson & Wiggins were to receive $3.75 per perch for performing the whole of the stone work. As they only finished a part of the work, the value of the part they did perform, can be ascertained by the cost of completing the remainder of the building.”
General charge: “ If the jury believe that when Johnson and Wiggins abandoned the work, they did so in consequence of Hale and McClure’s not furnishing material as required by Johnson and Wiggins, then plaintiffs, would be entitled to recover $3.75 per perch actually erected, and for such damages as may have been proven that Johnson and Wiggins suffered in consequence of the failure of Hale and McClure to comply with their part of the contract.”
We are of the opinion that thé court was right in refusing the first of these instructions. It is no doubt true, that the rule which it is quite plain was intended to be expressed therein, or at least one similar in principle, might be found to apply in some measure to a case substantially like the one stated in the pleadings in this record; but if so applicable, it would be necessary that it should be couched in such terms as would not be calculated to mislead the jury, when they should come to pass *143upon the evidence in the light of such rule. Such was not the case here. The instruction as it stands — and especially when considered in connection with some of the facts which are stated to have been proven, is eminently unfair in the criterion it furnishes by which to estimate the value of that portion of the work which was performed by the plaintiff. The term or expression “cost of completing,”-etc., is used in an unrestricted sense, and under the evidence might have been held by ■the jury to include whatever the defendants below might have shown they had paid, or had seen fit to agree to pay, for the completion of the work, even to an amount much greater than the actual and reasonable value thereof. It hardly needs to be said, that the giving of an instruction which would have permitted the jury to go to the extent indicated, would have been improper.
As to the last instruction above set out, we think it was wrong, and for the reason that it is not in conformity with the rule laid down in the statute by which to estimate the amount which a party in a case of this kind is entitled to recover. This was an action brought under the provisions of the Mechanics’ Lien Act, ch. 137, Comp. L. 1862. Section 11 of said act provides as follows:
“ Sec. ll.-"When the owner of thé land shall have failed to perform his part of the contract, and by reason thereof the other party shall, without his own default, have been prevented from performing his part, he shall be entitled to a reasonable compensation for as much thereof as he has performed in proportion to the price stipulated for the whole; and the court shall adjust his claim accordingly.”
The difference between the rule here established and that expressed in the instruction given is apparent at a glance, and needs not to be enlarged upon. For the *144error of the court below in giving tbis instruction tbe judgment must be reversed, and the cause sent back for a new trial.
Valentine, J., concurring.