Page:North Dakota Reports (vol. 48).pdf/603

 request, in rebuilding a basement wall and furnishing materials; that the same was reasonably worth $343.44; that no payment has been made except $100 on December 4, 1914. The answer is that the work was done under a written contract whereby the plaintiff agreed to do the same for $250 and Io per cent.; that plaintiff did the work so unskillfully that the basement wall cracked and broke and was of no value, to the damage of defendant $1,000. The verdict is for the plaintiff, $243.44, with interest from December 1, 1914, at 6 per cent. The written contract mentioned in the answer consists of two letters. Mr. Hildreth wrote the plaintiff on October 3, 1914: “I would like to have you look at the crack in my basement wall and give me an idea of the expense of rebuilding it.” The answer was this:

“October 10, 1914.

“Mr. Hildreth: In compliance with your request we have made an examination of the basement walls of your house on Eighth Street South, and in our judgment it will cost you about $250 to do the necessary repairs. We will gladly do it on a ten per cent. basis.”

Clearly that was not a contract to do the work and furnish the materials for a definite sum. It was an offer to do it for what it was reasonably worth, or for the cost of labor and material with ten per cent. profit. When the work was done an account was rendered showing the cost of the labor and of the materials. The amount was $312.22

The 10 per cent. was $31.22

The total amount was $343.44

As the evidence clearly shows, the charges were correct and the work was well done and the basement wall put down to the level directed by Mr. Hildreth. But the wall did crack by reason of the fact that the house was built on the brow of the hill adjacent to a big slough, and the earth under the wall gradually sagged and settled down, and for the same reason there occurred a similar crack in the cement basement walls of all houses on the brow of that sagging hill. But that was not the fault of the contractors. The crack might possibly have been prevented by reinforcing the basement wall with numerous iron rods or by putting the wall to a much greater depth, but that would have greatly increased the expense, and it was not within the contemplation or thought of either party. The sinking of the earth under the wall is a misfortune for which