Page:North Dakota Reports (vol. 48).pdf/683

 P. Dec. 51; Heckman v. Pinkney, 81 N. Y. 211. Engerud, Divet, Holt & Frame, for respondent.

“To entitle a contractor to recover on a building contract, which has not been fully complied with by him, under the doctrine of substantial performance, it must appear, not only that he endeavored to perform it in good faith, but also that he has done so, except as to unimportant omissions and deviations.” Anderson & Hunter v. Todd, 8 N. D. 158; Marchand v. Perrin, 19 N. D. 794, 799; Braseth v. Bank, 12 N. D. 486; Elliott v. Caldwell (Minn.) 45 N. W. 845; Franklin v. Schulz, 57 Pac. 1037; Ashley v. Henehan, 47 N. E. 573; Manthey v. Stock, 113 N. W. 443; Gillespie Tool Co. v. Wilson, 16 Atl. 36; Marchant v. Hayes, 4g Pac. 840; Hennessey v. Preston, 106 N. E. 570; Bush v. Jones, 144 Fed. 942, (3 C.C.A.).

, J. This is an action upon a building contract. In the trial court the jury returned a verdict for the plaintiff. Upon motion, judgment notwithstanding the verdict was entered for the defendant. The plaintiff has appealed from the judgment and the order therefor. The facts necessary to be stated are as follows:

Pursuant to a builder’s contract and certain plans and specifications, the plaintiff contracted to erect a certain hotel building at Lakota, N. D., for a stated consideration of $28,800. In his complaint, the plaintiff alleges that he has performed the conditions of the contract, and that there is due thereon $6,656.83; further, that he furnished certain extras of the value of $750. In his answer, the defendant alleges, in addition to the assertion of certain payments and existence of certain liens, that plaintiff did not perform the contract according to the terms and conditions thereof; that the plaintiff performed the work in an unworkmanlike manner and left the building unfinished, and employed incompetent and negligent workmen, and failed to properly construct or complete such building, although repeatedly notified by the architect to so” do; that plaintiff has failed to produce a certificate from the architect showing compliance with the contract, and the architect has refused so to make a certificate by reason of plaintiff’s failure and refusal to complete the contract. In counterclaims, the defendant further alleges