Page:North Dakota Reports (vol. 48).pdf/690

 The jury found that there was a substantial performaceperformance [sic] of the contract; the instructions of the court required them so to do in order to find for the plaintiff. The defendant maintains, however, that the verdict, as returned, shows an allowance of $2,488.49 awarded for omissions and defective work; that the amount so allowed by the jury was a substantial sum, and that that which requires a substantial sum to finish is not substantially finished; that, accordingly, the finding of the jury furnished an incontrovertible fact requiring the court to order judgment notwithstanding the verdict. It may be somewhat difficult to understand the items of allowance and disallowance in the verdict returned. This, however, is not a source of wonder. The record was long; the instructions were oral; the jury returned to the court after retirement to learn something about the figures concerning the cost of repairs; the bills therefor were not introduced in evidence. It appears, however, that the defendant took possession of the building and proceeded to make repairs of the omissions and defects alleged and proceeded to furnish labor and materials towards completing the contract.

In its answer the owner sets up as counterclaims the amount of this work and material furnished. This amount, covering decorating, floor cleaning, varnishing, cleaning up premises, carpenter work, and materials furnished totals $1,917.41. In accordance with the figures of the respondent this would leave $571.08 over and above the labor and material furnished after the owner took possession of the building. If, however, the jury did not allow interest, the amount would be $333.30. The only basis for stating that possibly the jury did not allow interest is a possible misconstruction that the jury may have placed upon the instructions of the court when the jury returned to the court for further information. The court stated that the extreme limit of the plaintiff’s recovery was $5,792.17, although previously it had instructed the jury to allow interest. It is true that the owner asserts, and there is evidence to show, that the plaintiff wilfullywillfully [sic] abandoned the contract and failed in many respects to perform the conditions thereof. On the other hand, there is evidence in the record that there has been a substantial performance of the contract, either by the builder or owner, or both. Under the circumstances, substantial performance might occur through the work and materials furnished by the owner after taking possession. =

In Hunn v. Penn. Inst. for Blind, 221 Pa. 403, 70 Atl. 812, 18 L. R. A. (N. §.) 1248, the court, concerning a contract provision giving the