dissenting:
I think my associates are in error in holding that the covenants referred to in the contract are conditions precedent to the right of recovery of any amount as stated, or at least inferred, in the opinion of Mr. Justice Castles.
Courts are "disinclined to construe stipulations in a contract as conditions precedent, unless compelled to do so by language of the contract plainly expressed, where so to do would result in injustice.” 17 C.J.S., Contracts, section 338, page 794. In doubtful cases stipulations are construed as covenants rather than conditions precedent. Murphy v. Schuster Springs Lumber Co., 215 Ala. 412, 111 So. 427.
Even as to conditions precedent the rule is not as strict as my associates hold. Section 17-809, R.C.M. 1947, of our statute provides:
*30“Specific performance cannot be enforced in favor of a party wbo has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, except where his failure to perform is only partial, and either entirely immaterial, or capable of being fully compensated; in which case specific performance may be compelled, upon full compensation being made for the default.”
There are many ill-considered opinions which have announced the rule that there can be no recovery on a contract which has only been partially performed. They are listed in 17 C.J.S., Contracts, section 511, page 1093. But in my opinion the better-reasoned cases, under facts such as we have here, support the contrary rule stated by the same author in the same section of C.J.S. wherein it is stated:
“However, in such cases, where the part performance has been beneficial to the other party and he has accepted and retained the benefits thereof, the party partially performing is entitled to recover either the reasonable value of such performance or the contract price pro tanto, subject to the reciprocal right of the other party to recoup' such damages as he has suffered from the failure of plaintiff to perform fully”. The cases there cited support the text.
Thus in Gibson Co. v. Morton, 88 Ind. App. 685, 148 N.E. 430, 433, the court said:
“The general rule is that a party cannot recover upon a special contract which he had failed to fulfill on his part, but there is another well-established rule to the effect that, where the plaintiff’s agreement or stipulation constitutes only a part of the consideration of the defendant’s agreement, and the defendant has actually received a partial benefit, and the breach on the part of the plaintiff may be compensated in damages, an action may be maintained on the contract without showing strict performance. Deep Vein Coal Co. v. Jones, 49 Ind. App. 314, 97 N.E. 341.”
*31In White Star Coal Co. v. Pursifull, 186 Ky. 697, 703, 217 S.W. 1020, 1023, the court stated:
“But, independent of these considerations, it may be confidently stated that the law in some cases permits the contractor to recover for part performance the contract price pro tanto for the finished portion of the work where the other party accepts it and is benefited thereby. Illustrating, if A. contracts with B. to manufacture and deliver 10 wagons of certain specifications, and B. manufactures five of them according to specifications, and delivers them to A., who accepts them, B. can recover the contract price for the five wagons, subject to whatever damage A. might sustain by reason of B.’s failure to manufacture the other five.”
See also the cases cited under note 11 in 17 C.J.S., Contracts, section 511, page 1094, including that of Woodford v. Kelley, 18 S.D. 615, 101 N.W. 1069, relied on specifically by plaintiffs here. Our statute, section 17-809, supra, reflects the rule followed in those cases. Any other result would operate as a forfeiture. Can it be that where plaintiffs have cared for the sheep eleven months, they cannot recover because they failed to care for them the remaining month? Forfeitures are not favored in law or equity. Section 17-102 provides:
“Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent willful, or fraudulent breach of duty.”
In my opinion the complaint states facts sufficient to constitute a cause of action.
Defendant of course has the right to reduce the contract price by pleading and proving affirmative defenses or off-sets.
The cases of Harris, Adm’r v. Root, 28 Mont. 159, 72 Pac. 429, and Sutton v. Lowry, 39 Mont. 462, 104 Pac. 545, were cases to recover contingent attorney’s fee and, of course, un*32less the contingency has been met there can be no recovery. Those cases differ widely from the case at bar.
The ease of Broat Lumber Co. v. Van Houten, 66 Mont. 478, 213 Pac. 1116, was one involving a condition precedent. That was also true of Binzel v. Viehmann, 111 Mont. 6, 106 Pac. (2d) 187. The other cases relied on in the majority opinion are likewise readily distinguishable.
The rule applicable here is stated in 1 C.J.S., Accounting, section 38(3), page 670, as follows:
“Accounting under contract. Where a contract is the foundation of plaintiff’s right to an accounting, he must allege such contract, and its provisions, and state facts bringing the case within such provisions; but an allegation that the contract was fully performed is not essential.” To the same effect is 2 Bancroft’s Code Pleading, Accounts and Accounting, section 766.
Also, in this ease as stated in the majority opinion, the amended reply alleged that the action of defendant made it impossible for plaintiffs Horne to render full performance of the contract.
I do not believe this allegation is needed to bolster the complaint. I believe it is responsive to the new matter or affirmative defense alleged in the answer within the meaning of Thornton v. Kaufman, 35 Mont. 181, 88 Pac. 796.
The record does not contain any objection to the reply as constituting a departure from the allegations of the complaint. Had it done so plaintiff might have seen fit to amend the complaint. The ease was tried as if the reply was responsive to the new matter or affirmative defense.
The evidence, to the effect that defendant’s actions made it impossible for the Hornes to render full performance of the contract, went in without objection on the ground of variance and without objection on any other ground. In fact, that evidence was brought out by counsel for defendant on the cross examination of plaintiffs Horne. Certainly defendant is in no position to contend that he was prejudicially affected by such evidence. Furthermore under the facts here, and particu*33larly in a case tried to the court without a jury, the complaint, if it lacks sufficient facts, will be deemed to have been amended to conform to the proof. I think the complaint was sufficient. Other questions have been raised by appellant, but since they are not considered in the majority opinion it would be pointless for me to consider them.