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Allen Twitty v. Thomas M'guire.
*503 Hare, Judge, delivered the opinion of the Court: It appears that the house built was of the dimensions and form set forth in the agreement of the Defendant. When a carpenter builds a house substantially different in dimensions and form from that contracted to be built, it is in no wise a compliance even in part with his contract: because in such case it may not answer the purpose for which bis employer contracted to have it built.
Besides, it is the folly of the carpenter to build such a house, when it may bo reasonably presumed his knowledge in his art would enable him as readily to build a house of one form as another. But where the house built, as in the present case, is precisely such a one as the Defendant contracted to build, as to the size and form of it, I think the case is different.
Because the house in question will answer the purpose intended by the Plaintiff, although it is of less value on account of some of the materials of which it is built not being so good as those contracted for, nor the house built altogether in a workmanlike manner. If this were not the case, the smallest deviation by a carpenter, in finishing a house, from the mode agreed upon, would render him a delinquent in tolo, when, perhaps, the thing complained of did not amount in value to forty shillings.
It is therefore better that the house built under such circumstances should be considered a part performance of the covenant on the side of , the Defendant, than that it should be thrown altogether on his hands,* particularly as an action lies for the Plaintiff to recover adequate damages for the injury sustained by him.
I do not pretend to say, that the house built, although of the dimensions and form stipulated by the Defendant, is a part performance of the covenant, if the materials and the workmanship are so vastly inferior as to be of little or no value. In such case, full damages should be recovered for a non-performance of the contract.
These are circumstances open for observation by the Court and Jury on the trial. *504 In the present case, the Jury have found that the house contracted to be built was of the-value of 1200 dollars, and of the house built 800 dollars. The measure of damages is the diiferonce between those sums, and damages for the breach of the contract. The rule for a new trial must be made absolute.