Page:North Dakota Reports (vol. 48).pdf/639

 2. quantum meruit unless he has acted in good faith under the contract, in an endeavor to perform it. Burke v. Coyne, 188 Mass. 401, 74 N. E. 94; Sipley v. Stickney, 190 Mass. 43, 112 Am. St. Rep. 309, 75 N. E. 226,5 L. R. A. (N. S.) 469, 5 Ann. Cas. 611. If he abandons the contract without excuse when he has only half performed it, he has no remedy. Homer v. Shaw, 177 Mass. 1, 58 N. E. 160. In both these particulars the contractor is governed by the same rules as those which are adopted generally in other states.” 203 Mass. 371, 89 N. E. 544, 133 Am. St. 306.

In this case it is established, either by conclusive or by undisputed evidence, that the plaintiffs failed to comply with the terms of their contract with the defendant; that they, in fact, failed to construct a well ag all; that they ceased drilling, and took away their outfit, and left the well in the condition found by the trial court in the findings in the former suit, over and in spite of the protest of the defendant; that even after the terms of the contract had been definitely and conclusively established by the decision of this court, not even an offer was made by the plaintiffs to comply with the terms of such contract. It will also be noted that the plaintiffs failed to show the value of the well as constructed by them, or that it in fact had any value as such or that it added to the value of defendant’s land. In other words, plaintiffs failed to make out a prima facie case, and there was no evidence on which the jury could base a verdict in favor of the plaintiffs. In the quotation from Sutherland on Damages, approved and adopted in Horton v. Emerson, it is said:

“The sole ground upon which a contractor is entitled to anything under this rule is that if he were not paid something the defendant would profit at his expense, although his claim is without merit as far as rights under the contract are concerned. Hence the amount which may be recovered is the amount by which, were no payment made, the defendant would profit at the plaintiff’s expense; that is to say, the amount which represents the fair market value of the structure which, | against the wishes of the defendant, has been put upon his land. This value the plaintiff must prove before he can recover. If the contract is a beneficial one to the landowner the contractor is not entitled to recover any margin of the benefit which the former secured by the making of the contract; but the contractor is entitled to the value of the building as it is in the light of the landowner’s right to have the building built, and properly built, for the contract price. If, for example, the