having made a statement of the case, as above, delivered the opinion of the court.
The main question presented, under the pleadings and the evidence in this case, is, what obligations did the plaintiff assume by virtue of the contract between the parties ? Did it obligate itself to furnish the material in dispute according to certain specific terms as to condition, kind, and quality, as insisted by the respondent, or did the transaction amount merely to a sale of chattels upon inspection, as contended by the appellant.
To determine the matter thus presented it becomes important, in the first instance, to ascertain from the proof what constitutes this contract, and then determine the obligations imposed and the rights created thereby. It appears from the evidence that the proposition which led to the contract was made by the plaintiff to the defendant’s architect in writing, and, so far as material here, it reads as follows: “We are pleased to name you a figure of nine hundred and seventy dollars on the bill of finish for W. F. James’ house, all according to your plans and specifications and details. . . . We will handle it in good shape and to> the satisfaction of hoth yourself and the owner.” This offer or proposal was accepted, and the contract awarded verbally. The time for *439the delivery of 'the material was by oral agreement to be August 1, 1900.
It will be noticed that the proposal refers to the plans, specifications, and detail drawings for the building, which indicates the intention to furnish -the material in accordance 1 with them, and, upon acceptance of the offer, such plans, specifications, and detail drawings, under a familiar rule of law, became a part of the contract, equally binding as the proposal itself, and reference must be had to them to determine the nature and character of the contract, and the obligations and rights of the parties thereunder. Referring, then, to the writings and drawings mentioned, 2 and examining and construing them and the proposal together, it seems dear that the contract between these parties partakes of the nature and character of a building contract, and that the transaction was not merely a sale of the chattels upon inspection, where the maxim “caveat emptor” applies.
“A contract,” says Mr. Lloyd, in his work on the Law of Building and Buildings (section 1), “is an agreement between two or more persons, for a valuable consideration, to do or not to do some particular thing; and when the undertaking refers to constructing, erecting, or repairing an edifice or other work or structure, it may be called a building contract.” And in section 54 the author says: “The builder is bound to scrupulously follow the specifications, and can not justify a departure therefrom by substituting other details, although as good as those called for; he must execute the work almost to the very letter of his instructions. He is just as firmly bound by the terms of the specifications as by the covenants of the contract.” City of Salt View v. MacRitchie, 134 Ill. 203, 25 N. E. 663; Cook v. Allen, 61 N. Y. 578.
Such being the law, the appellant was bound to take notice of the specific terms of its contract. It was bound, in order to avoid liability for damages, to furnish and deliver *440the material in accordance with such terms, and it could not shake off its obligations by a failure to inspect the material before delivery. The law binds a party to such a contract to perform Ms undertaking. In this ease the undertaking was to furnish the finishing material for the respondent’s house according to Ms plans and specifications, and therein, among other things, it was specified that “all such material must be thoroughly kiln-dried, hand-smoothed, and scraped with cabinet scraper and hand-sandpapered.” These provisions 'the appellant was obligated to follow. It could not substitute other unseasoned material for that specified, and having done so, as is clearly shown by the evidence, it rendered itself liable in damages as for a breach of contract. Nor did the fact that the respondent used the material and attached it to his freehold, before discovering the defects, and without making any complaint or objection thereto, under tire facts and circumstances disclosed by the evidence, constitute a waiver of the defects, or relieve the appellant of its obligations or of its liability • to the owner for damages which resulted by reason of its failure to properly perform its contract. The mere use of the material without discovery of the latent 3 defects did not amount to such an acceptance as to preclude the owner, upon the defects appearing as seasoning progressed, from showing that the material was not furnished according to the terms of the agreement. Lloyd’s Law of Buildings, sec. 22.
Nor, upon careful examination of the evidence,- do we tMnk the court erred in allowing the various items of damages. The damages assessed are only such as are the proximate result of the failure of the appellant to perform its contract, and merely constitute the pecuniary damage which the owner suffered. To such damages the defendant, under the facts and circumstances disclosed, was clearly entitled.
Entertaining, in this case, the views hereinbefore expressed, it becomes unnecessary to discuss the other points presented.
*441We find no reversible error in tbe record. Tbe judgment is affirmed, with costs.
BASKIN, 0. J., and McOAETY, J., concur.