Page:North Dakota Reports (vol. 48).pdf/689

 good faith and according to its terms, and has done so except as to unimportant omissions or deviations which are the result of mistake, oversight, or inadvertence, and were not wilfulwillful [sic] and intentional and are susceptible to remedy, so that the owner will get substantially the building he has contracted for, then the contractor is said to have substantially performed his contract.

The jury returned a verdict of $3,541.46 in favor of the plaintiff. Before rendition of the verdict, the jury came before the court and asked certain questions. One juror stated that—

“We cannot agree as to what the figures were for the repairs—what the repairs cost—and we are wondering if we could get: these figures from the testimony.”

The court advised them that the bills were not introduced in evidence, and that, if it was the purpose of the jury to allow certain items for repairing certain defects which would be found to be’ only minor defects, the jury would have to do the best it could to remember them. A juror asked if the plaintiff had allowed in his testimony the full amount of the claim for the cistern. The court advised the jury that they would have to remember the testimony the best they could. The plaintiff maintains that the question of substantial compliance was for the jury, and that it was error for the trial court to reverse its findings.

The respondent contends that the verdict of the jury disclosed lack of substantial compliance with the contract; that, deducting interest allowed in the verdict, there remains the sum of $2,488.49 as the amount awarded.by the jury for omissions and defective work; that this award of such a substantial sum establishes incontrovertibly failure to substantially comply, that accordingly the plaintiff cannot recover pursuant to the principles of law announced in Anderson & Hunter v. Todd, 8 N. D. 158, 77 N. W. 599; Braseth v. Bank, 12 N. D. 486, 98 N. W. 79; Marchand v. Perrin, 19 N. D. 794, 124 N. W. 1112.

Ordinarily, the question of the substantial performance of a building contract is one of fact for the jury. Pitcairn v. Hiss Co., 113 Fed. 492, 51 C. C. A. 323; Elizabeth v. Fitzgerald, 114 Fed. 547, 52 C. C. A. 321; Fitzgerald v. La Porte, 64 Ark. 34, go S. W. 261.