Page:North Dakota Reports (vol. 48).pdf/640

 landowner secured by his contract the erection for $2,000 of a building worth $3,000, and the plaintiff, in erecting the building, fails to comply with the contract in matters going to the essence of the contract, and the building, erected as it is erected, is worth $2,500, the plaintiff is not entitled to recover $2,500; all that he is entitled to recover is 25/30 of £2,000.”

In support of the rule so stated, Sutherland (Sutherland on Damages 3d ed. § 711) cites Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455. That action was one for work done and materials furnished in the construction of a building which the plaintiff had contracted to build, but tailed to construct to the satisfaction of the architect, whose approval was required by his contract, which also required the plaintiff to ram the cinder filling on which the concrete floor of the building was laid. When certain heavy tanks for which the building had been designed were put in place there was so great a sinking of the floor that the damage caused thereby was greater than the value of the work and materials furnished by the plaintiff. The cause of the sinking of the floor was not shown. It was held that in order to recover the plaintiff must show that the building as it existed had a market value and added to the value of the defendant’s land; that the. burden was not upon the defendant to show that the sinking of the floor was due to the failure of the plaintiff to perform this contract, and that the plaintiff could not recover the value of his work and materials diminished by such damages as the defendant could prove in recoupment. In the opinion in the case the Massachusetts court said:

“It is plain, therefore, that the plaintiff who seeks a recovery under the principle of Hayward v. Leonard for work done under a special contract does not recover on the same ground as that on which a plaintiff recovers who has done work as he has been requested to do. So far as his case travels on that ground, he is out of court; his sole claim tu be paid anything is that if he is not paid the defendant will profit at his expense; until he has proved that the defendant will in that case profit at his expense, he has not made out a prima facie case to be paid anything, and until he has proved how much that profit will be his prima facie case 43 not complete. When the fact appears in evidence that the work for which money is sought was done under a special contract, and that the plaintiff cannot recover under the special contract, but still seeks a recovery, there is no question of the value of his work and materials, proved