Page:North Dakota Reports (vol. 48).pdf/452

 would condemn it, have it taken out and another put in. He stated further that the rafters, ceiling, and joists had sagged; that they were not properly braced; that the floor had sagged some; that the frame at the plate line was very roughly thrown together and not put in according to plans and as a result seems to let the building spread; that the cornices were open and let the daylight in; that some of the wainscoting was out of plumb; that the outside walls were not in plumb.

There is much more evidence by the same witness largely to the same effect. He further testified as follows:

Q. What difference in money in your opinion would there be between the building as it stands now, as erected by Mr. Kasbo, and the building as it should have been erected under that contract? A. $4,500.

He testified further to the effect that the building could not be repaired and put in condition as required by the specifications for $4,500; that there was no way that the wall could be repaired and made to stand up according to the plans and specifications; that it would have to be wrecked and rebuilt; and that in his opinion it would cost, to take out and rebuild a foundation for a new building, about $3,000. In substance his testimony shows that to make the building, aside from the foundation or basement walls, comply with the plans and specifications, it would have to be wrecked and rebuilt, and that this could not be done for $4,500.

The evidence of Shannon is substantiated by that of other competent witnesses. The evidence is abundant to sustain the verdict of the jury. If the verdict of the jury had been for a much larger amount, there is abundant evidence in the record to have sustained it.

The several assignments of error predicted upon alleged erroneous instructions have been carefully analyzed and are of no real substance, and are largely without merit. The parts of the instructions from which excerpts are taken are entirely too lengthy to be here set out and none of them merit discussion. It will, however, do no harm to briefly discuss the only one of importance. It is claimed that it does not state the true measure of damages. It is as follows: "It would be your duty to deduct the costs of supplying the defects." This is but an excerpt from the following portion of the instructions:

"To entitle the contractor to recover on a building contract, which has not been fully complied with by him, when he admits there are defects but claims the contract was substantially performed, it must appear and