Page:North Dakota Reports (vol. 48).pdf/454

 In White v. McLaren, 151 Mass. 553, 24 N. E. 911, it is stated that-

"The question ordinarily is, how much less is the building fairly worth than it would have been had the contract been performed?"

In Gibson v. Carlin, 13 Lea (Tenn.) 440, it is stated that-

"The measure of damages is ordinarily the difference between the contract price and the value of the work as done for merely inferior work, and for defective work the cost of replacing it so as to make it equal to the work contracted for."

In Hartford Mill Co. v. Hartford Tobacco Warehouse Co. (Ky.) 121 S. W. 477, it is stated that-

"In an action for breach of a building contract for alleged improper construction, the owner's measure of damages is the difference between the value of the building when constructed and what its value would have been if constructed according to contract, and with reasonably sound material and reasonably skillful workmanship."

In Small v. Lee & Brothers, 4 Ga. App. 395, 61 S. E. 831, it is stated that-

"The true measure of damages is the difference between the value of the house as finished and the house as it ought to have been finished under the contract, plans, and specifications."

The language of the instruction complained of stated the rule enunciated in those cases. The language used is different than in those cases, but in reality it states the same rule, for when defects, etc., are supplied, the building would be according to contract.

The instructions were not erroneous and prejudicial for failure to set forth the law relative to settlement or adjustment.

The plaintiff contends that after the completion of the schoolhouse the defendant accepted it by taking possession of it and using it. There is no merit in this contention, as there was no other proper place where a school could be held, and of necessity defendants were compelled to use the building in its defective condition, and in doing so it waived none of its claims or causes of action, if any, against plaintiff.

There is no reversible error in the record, and the order appealed from should be affirmed.

It is affirmed.

Respondent is entitled to its costs and disbursements on appeal.

,, }}, and , JJ., concur.