Page:North Dakota Reports (vol. 48).pdf/453

 he must show that not only he endeavored to perform it in good faith, but also that he has done so, except as to unimportant omissions or deviations which are the result of mistake or inadvertence, and were not intentional, and which are susceptible of remedying so that the other party will get substantially the building he contracted for. For example, if the building is substantially erected, but the contractor has failed through mistake or inadvertence or some other reason that is not intentional, to give the required thickness of painting, and it is shown how much it will cost to supply this defect and if the defects were supplied, the building would be substantially correct, then he would be entitled to recover, but it would be your duty to deduct the cost of supplying the defects. I mention painting, not that it is proof of a defect, but merely as an illustration."

Certainly there is no error in giving that instruction. The following is complained of:

"If the building is fairly in compliance with the contract, but has defects which should and can be remedied, then the defendant has the right to deduct the cost of remedying from the contract price and if then it has overpaid the plaintiff, it is entitled to judgment for the difference."

If it cannot be remedied, then the defendant is entitled to judgment for the amount it paid, and if it can be remedied, then deduct from the contract price $9,241.40, and from the proved extras which ought to be paid for, the amount necessary to remedy it, and if the remainder be less than the amount paid, then the defendant is entitled to judgment for the difference. Even though the foregoing instruction be considered by itself, and not in connection with the instructions as a whole, it is clear that the giving of it was not error, and, if so, the error was harmless, for certainly it states the correct rule of damages.

In 9 C. J. p. I10, the rule is thus stated:

"The measure of damages occasioned by failure strictly to perform the building contract is, in the case of substantial performance, the difference between the value of the work done or the building erected and the value of that which was contracted for."

In Walter v. Huggins, 164 Mo. App. 69, 148 S. W. 148, it is stated:

"The fundamental idea running through all of the case law is that an owner is entitled to a performance of the contract by the contractor, and, where the contract is breached, is entitled to recover damages that will be a just equivalent for the breach."