#### Allen Twit*ty v*. Thomas M’Guire.

From Rutherford.

A. having' covenanted to build for B. a house of certain dimensions and form, of good materials, and to execrrte the work in a workmanlike manner, built a house of the form and dimensions set forth in the covenant, but part of the materials were not good, and part of the work was not done in a workmanlike manner. B. refused to accept the house, and sued A. on his covenant. B. is entitled to recover, not the value of such a house as A. had covenanted to build, but the difference in value between such a house and the h-.use built,' and damages for the breach of the covenant; unless the materials and workmanship be so inferior as to be of little or no value.

This was an action of covenant brought on the following agreeament, to wit:

*“*I, Thomas M’Ouirc, of Rutherford county, North-Carolina, bind my- ‘ self, my heirs, Ike. to Allen Twitty, his heirs, &c. to build a house in “ Rutherfordton on the lot said Allen Twitty bought of William Tate, *“*on the following plan, viz. As long and as high as the corner posts and “ sills which are already got will admit of. The house to be biult of “ good materials, the shingles to be of the heart of" pine ; the house to “ have four rooms below, and five windows, a partition across the house *“*below; the upper story to be divided into three rooms, and have fohr *“*windows, and, if any more, said Allen is to pay said Thomas for it. *“*The lower floor is to be of one inch and quarter plank, quartered, *“*tongued and grooved; tile upper floor to be tongued and grooved, of “quartered plank; the joice to be ceiled with three quarter plank, “ tongued and grooved. The house to be ceiled below, and have a “ good chimney below, and a fire-place above, of good brick. The said “ Thomas is to have all the old materials that are on the lot, and to have “ liberty of working on said Allen’s land for kiln-drying the plank for “ said house; but not to destroy timber. The whole work to be done “ in a good, plain, workmanlike manner. The house to be completed “ by next October Court. The windows to be twelve lights each, and “ hung with good hinges; also the doors to he hung with good hinges. “ The stairs to be run where said Allen may want. For "the true per- “ formance of the above contract, I set my hand and seal this 30th No- “ vember, 1816.

“ THOMAS M’GUIRE. (Seal.)

, JN. MTNTIRE.” « Test,

*502On which agreement was the following endorsement, viz.

*“*Received of Allen Twilty full payment for the completion of the *“*within articles, 30th Nov. 1816.

“ THOMAS M’GUIRE.”

The Plaintiff, in his declaration, assigned two breaches of covenant: 1st. That the materials of which the house was built were not good; 2d. That the work was not done in a workmanlike manner.

It appeared, in evidence, that *the*house built was of the dimensions and form prescribed in the agreement, and upon the lot therein mentioned ; but that part of the materials were not good, and that the work was not done in a workmanlike manner. That the value of the house, if built of such materials and in the manner required by the agreement, was twelve hundred dollars; and the value of the house, as built, was eight hundred dollars; that the Plaintiff had refused to accept the house in consequence of the insufficiency of the materials and the work. The Court charged the Jury, that if they believed the evidence, the Plaintiff was entitled to recover the value of such a house as Defendant had agreed to build, with interest on that sum from the day on which the house was to have been completed; and that Plaintiff Slaving refused to accept the house, the Defendant had the right to it, and might remove it. The Defendant’s counsel contended that the Plaintiff was entitled to recover only the difference between the value of the house built, and the value of such a house as he had agreed to build; and that, it being erected on the Plaintiff’s lot, Defendant had no right to remove it, notwithstanding the Plaintiff’s refusal to accept it. The Jury gave a verdict for 1,340 dollars, the same being the value of such a house as Defendant had agreed to build, and interest on that value from the day on which the house was to have been completed. A new trial was moved for, and, it being refused, the Defendant appealed.

*503Hare, Judge,

delivered the opinion of the Court:

It appears that the house built was of the dimensions and form set forth in the agreement of the Defendant. When a carpenter builds a house substantially different in dimensions and form from that contracted to be built, it is in no wise a compliance even in part with his contract: because in such case it may not answer the purpose for which bis employer contracted to have it built. Besides, it is the folly of the carpenter to build such a house, when it may bo reasonably presumed his knowledge in his art would enable him as readily to build a house of one form as another. But where the house built, as in the present case, is precisely such a one as the Defendant contracted to build, as to the size and form of it, I think the case is different. Because the house in question will answer the purpose intended by the Plaintiff, although it is of less value on account of some of the materials of which it is built not being so good as those contracted for, nor the house built altogether in a workmanlike manner. If this were not the case, the smallest deviation by a carpenter, in finishing a house, from the mode agreed upon, would render him a delinquent *in*tolo, when, perhaps, the thing complained of did not amount in value to forty shillings. It is therefore better that the house built under such circumstances should be considered a part performance of the covenant on the side of , the Defendant, than that it should be thrown altogether on his hands,* particularly as an action lies for the Plaintiff to recover adequate damages for the injury sustained by him. I do not pretend to say, that the house built, although of the dimensions and form stipulated by the Defendant, is a part performance of the covenant, if the materials and the workmanship are so vastly inferior as to be of little or no value. In such case, full damages should be recovered for a non-performance of the contract. These are circumstances open for observation by the Court and Jury on the trial.

*504In the present case, the Jury have found that the house contracted to be built was of the-value of 1200 dollars, and of the house built 800 dollars. The measure of damages is the diiferonce between those sums, and damages for the breach of the contract. The rule for a new trial must be made absolute.