Page:North Dakota Reports (vol. 48).pdf/634

 From a judgment of the District Court of Dickey County, McKenna, J., plaintiffs appeal.

Affirmed.

F. J. Graham, and E. E. Cassels, for appellants.

Where an action for the foreclosure of a mechanic’s lien fails the plaintiff may sue upon a quantum meruit. Anderson v. Todd, 8 N. D. 158, 77 N. W. 599; Marchand v. Perrin, 19 N. D. 794, 124 N. W. 1114.

The measure of such recovery is the contract price less compensation for imperfections of work or materials. Lighthall v. Colwell, 56 Ill. 108; Fuller v. Rice, 52 Mich. 436, 18 N. W. 204; Mosaic Tile Co. v. Chiera, 133 Mich. 498, 95 N. W.'537; Sheldon v. Lealy, 111, Mich. 39, 69 N. W. 76; Mathews v. Farrell, 140 Ala. 298, 37 So. 325; Higgins Mfg. Co. v. Pearson, 146 Ala. 528, 40 So. 579; Barnwell v. Kempton, 22 Kan. 314; McKnight v. Bertram Hear & Plumbing Co. 65 Kan. 859, 70 Pac. 345; Walsh v. Jenvey, 85 Md. 240, 36 Atl. 817, 38 Atl. 938.

The disclosure of a special contract at the trial of an action on quantum meruit will not defeat the action, but will merely limit the amount of recovery. Henderson v. Mace, 64 Mo. App. 393; Scott v. Congdon, 106 Ind. 268, 6 N. E. 625.

Even though such a contract was not substantially performed, the contractor still has the right of action on quantum meruit. If the property derives any benefit from the services done and materials furnished by the contractor, he must pay for their value, not exceeding the contract price. 15 Am. & Eng. Enc. Law 1903; Katz v. Bedford, 77 Cal. 319, 1 L. R. A. 826, 18 Pac. 523; Blakeslee v. Holt, 42 Conn. 226; Smith v. Scott’s Ridge School Dist. 20 Conn. 312; Eldridge v. Rowe, 7 Ill. g2, 43 Am. Dec. 41.

The former judgment between these parties, which is a dismissal of the action, cannot be pleaded as res judicata this action. Bray v. Bocker, 6 N. D. 530, 72 N. W. 933, 24 Am. & Eng. Enc. Law 775; Arnold v. Grimes, 2 Iowa I.

W. S. Lauder, for respondent.

, J. Plaintiffs seek in this action to recover upon the quantum meruit for the labor and materials furnished to the defendant in drilling a well on his farm in Dickey county, in this state. The case