Page:North Dakota Reports (vol. 48).pdf/691

 owner the right to take possession and complete the building, stated:

“We therefore hold that the averment of complete performance in so far as the construction of the building is involved is sustained by proof which shows that the contractors performed a large part of the work, and that the building was finally completed by the owners in accordance with the contract.”

Again, in Van Clief v. Van Vechten, 130 N. Y. 580, 29 N. E. 1019, the court said:

“The owner, however, although under no obligations to do so, completed the building herself, according to the contract, which thus continued operative through her action. After the contractor refused to proceed she performed the contract for him, as it expressly permitted her to do. As her action was according to the contract, it will be presumed, under all the circumstances and in support of the judgment, that it was under the contract. While she threatened to cancel it, there is neither finding, nor request to find, that she did cancel it, and instead of pleading a cancellation or rescission in her answer, she asked to have the amount expended by her to complete the building allowed as a set-off or counterclaim to any claim of the said defendant Smalle or the plaintiffs herein, or of any of the other defendants herein, in case the court should eventually determine that the said defendant Smalle is entitled to any sum whatsoever under the said contract.’”

Accordingly, we are not prepared to hold, as a matter of law, that there has not been a substantial performance of the contract because the jury possibly allowed, as deductions, either $571.08 or $333.30 in addition to the items furnished by the owner after taking possession. The allowance of such amount is not necessarily fatal to the finding of a substantial compliance, if the jury saw fit to give credence to the testimony of plaintiff’s witnesses. Jefferson Hotel Co. v. Brumbaugh, 168 Fed. 867, 94 C. C. A. 279.

The failure or refusal of the architect to issue a certificate did not preclude right of action by the plaintiff. 9 C. J. 763; Hunn v. Penn, Inst. for Blind, supra; Nolan v. Whitney, 88 N. Y. 649. It is ordered accordingly that the judgment of the trial court be reversed, and judgment be entered pursuant to the verdict of the jury.

, J., concurs.