The opinion of the court was delivered by
Horton, C. J.:Upon the trial, the jury returned a general verdict for Martin Lund for $235, but found the building worth $700, and that the school district had paid $312. The court rendered judgment for Lund for $388 upon the special findings. Complaint of this is made. It was decided in Barnwell v. Kempton, 22 Kas. 314, that
“ Where one party has entered into a special contract to perform work for another and furnish materials, and the work is done and the materials are furnished, but not in the manner stipulated for in the contract, so that he cannot recover tiie price agreed on in the contract, yet, if the work and materials are of any value and benefit to the other party, he may recover for the work done and for the materials. This is upon the principle that, if the other party has derived a benefit from the part performed, it would be unjust to allow him to retain that without paying anything.” (See, also, Duncan v. Baker, 21 Kas. 99.)
This rule, declared by this court and many other courts, “is bottomed on justice, and is right upon principle, however it may be upon the technical and more illiberal rules of the common law, as found in the older cases.” (McClay v. Hedge, 18 Iowa, 68.) The school district would have been entitled to an offset for any actual damage it sustained by any partial nonfulfillment of the contract, provided any actual damage had been proved.
The amended answer was not attacked by motion or otherwise, and therefore we think there were sufficient allegations in the second .cause of action alleged therein to sustain a verdict in favor of Lund upon a quantum meruit. (Meagher v. Morgan, 3 Kas. 372; Clark v. Fensky, 3 id. 389; Pom. Rem., § 542, and note.)
The contract price was $935, but as the building was not *736constructed according to the contract, that amount was not recoverable. It is contended upon the part of the plaintiff that it is immaterial what the building was worth, and that such a question ought hot to have been submitted to the jury for answer. But “ worth ” was treated in the instructions, and by the jury in the special findings, as synonymous with “the value of the work done and material furnished;” and, as the school district used and accepted the house, it was of the “reasonable worth or value of $700 to the district.”
It is suggested that the jury, by their general verdict, intended to allow $200 damage for the use of the house for one year, on account of the delay in its completion. There is no testimony in the record showing the rent or value of the use of such a house for a year or any other time, or the amount of any other specific damage caused by the delay in the completion of the house. In the absence of such evidence, we think the trial court committed no error in rendering the judgment complained of.
Lund claimed $935, upon the ground that he had complied with all the terms of the contract, and offered evidence that the labor performed upon the house and the material furnished for the same were worth $1,100. The school district was required to pay only $700 for the building, in the place of $935, the contract price.
The judgment of the district court will thérefore be affirmed.
All the Justices concurring.