Arndt v. Keller

. Maeshall, J. The first proposition of appellants’ counsel is that, the fact being established by the verdict that the contract was not fully performed by plaintiff, the conclusion of law that he was entitled to recover is erroneous. The principle invoked is that where a contract provides for payment of a specified sum for constructing a building, payable upon its completion, full performance is a condition prece [276] dent to a recovery thereon, and without proof of such performance, or of acceptance of the building or appropriation of the work done under the contract, equivalent to a partial acceptance, the contractor cannot recover on the contract or quantuam meruit. Moritz v. Larsen, 70 Wis. 569. That does not apply to the facts of this case. Here the contract provided that, on failure of the contractor to fully perform the contract to build the building, the owner might take possession^ thereof and complete it at such contractor’s expense. Such provision takes the contract out of the rule mentioned by expressly providing for a partial acceptance and deduction for nonperformance. Defendant F. C. Keller asserted his rights under such provision. He took possession of the building when plaintiff abandoned the work, and finished it, in substantial compliance with the contract, by the early part of January, 1893, and before the action was commenced. That appears by his own evidence. Under such circumstances, the law is that the contractor may recover the contract price, less the reasonable cost of completing the building so far as the same could be done practicably, the damage by delay, and the diminished value when completed because of defects not remediable without unreasonable expenditure. Pinches v. Swedish Evang. Luth. Church, 55 Conn. 183; Crouch v. Gutmann, 134 N. Y. 45; White v. Braddock Borough School Dist. 159 Pa. St. 201, cited by respondent’s counsel; also Lloyd, Building, § 26; Wells v. Board of Education, 78 Mich. 260; Charlton v. Scoville, 144 N. Y. 691; Van Lorn v. Mengedoht, 41 Neb. 525. Error is assigned on the finding of the jury that the building was substantially completed before the lien was filed. Whether such finding was warranted by the evidence or not is immaterial. It follows, from what has preceded, that plaintiff is entitled to recover the contract price, less deductions for expense of remedying the defects, so far as that was practicable without unreasonable expense, and for the [277] other damages sustained, if any. This finding is challenged upon the theory of appellants’ counsel that if the building was not substantially completed according to contract, by the plaintiff, he cannot recover at all. We hold against that proposition; hénce the materiality of the finding disappears. Error is assigned on the instructions respecting the sixth question, which covers the deductions from the contract price to which appellant was entitled for failure of plaintiff to fully complete the building; but, as no exceptions to the charge were preserved in the bill of exceptions, we must presume that the jury was correctly instructed. It appears that evidence in the record supports all the findings of fact as made by the jury, not heretofore referred to; that such findings cover all the issues of fact in the case; that judgment was entered in accordance therewith; and that there are no reversible errors. By the Court.— The judgment of the circuit courtis affirmed.