#### O. F. Mehurin & Son *v.*Samuel Stone.

1. Where, in tlie trial of an action to a jury to recover the stipulated price for the. erection of a building, facts are undisputed which entitle (the defendant to a verdict which is accordingly given, a judgment rendered on such verdict will not be reversed for instructions to the jury, although erroneous.

2. Where a contractor agrees to furnish materials for, and erect a building in accordance with certain plans and specifications, for a sum to be paid when the building is completed, a substantial compliance with the stipulations of the contract on his part, is essential to his right to recover the agreed price, or any part thereof.

3. In an action upon such contract to recover the agreed price of the materials and labor, evidence tending to show that the defendant waived *50the performance of certain of the conditions of the contract hy the plaintiff, is not admissible; and if admitted without objection, it is not error for the court to confine the jury, in their consideration of the case, to the issue made by the pleadings.

4 Where, in an action upon a contract, it is necessary for the plaintiff to establish the performance of the stipulations on his part in order to recover, the burden of proof is on him, and the burden is not changed by the fact, that the answer, in addition to a denial of performance by the plaintiff, specifically enumerates several particulars in which such failure to perform consists.

Error to the District Court of Licking County.

The original action was brought by the plaintiffs, against the defendant, to recover the contract price for building a cemetery vault. The petition alleged performance by the plaintiffs of all the conditions of the contract, except that relating to the roof, which, by a subsequent agreement of the parties, was to be made of slate, instead of stone flagging, at an additional cost to defendant of $66. The answer denied the performance by the plaintiffs of all or any of the conditions of the contract, and enumerated specifically, several particulars, in which the work done and the materials furnished, failed to conform to the agreement. A reply was filed, denying the averments of the answer, setting up the particulars in which the plaintiffs failed to perform their agreement.

The pleadings set up no modification or waiver of any of the conditions of the contract, except as above specified. The vault was to be built in the cemetery of the Licking Baptist Church. The contract was in writing, and contained, among other things, the following stipulations.

*“*1. The earth is to be excavated for the space of nine feet long, eight feet wide and two feet deep and then filled with good limestone, or some other good stone, well cemented together, so as to make a good substantial foundation for said vault.

*“*2. The two side walls and the back end wall of said vault to be of Ohio brown stone, of best quality for durability, the said stoue each to he nine inches thick, and to be of good size otherwise and to be well dressed-and cemented together in the walls, which are to be nine inches thick and the side walls each *51six feet and six inches high, and the back wall eight feet high .in the center of the back end; the hight of said walls to be measured from the top of the foundation to the top of the walls, and the front wall of said vault to be built of the best Vennont clouded marble, well dressed and polished in the most durable manner.

A space two feet wide and four feet six inches high to be left in the middle of said front wall for doors; the wall on each side of the door to be of one solid'bloek of marble, and the space above the door up even with the top of the side walls to be in one solid block of marble, on which is to be lettered such inscription as said Stone may direct, and on top of said last named block of marble is to be placed another block of marble reaching to the roof of said vault, and said last block, of marble is to be finished with a carved ornament or oval .¡Moulding, enclosing in the center an open bible, with a rose on each side, all neatly and elegantly carved and finished.

“6. The floor of said vault to be of best Waverly flagging stone two inches thick, completely dressed, and laid in mortar and firmly cemented together so as to be solid and level.

“ There is to be one slab of sand stone four inches thick and twenty inches wide, and long enough to reach from side to side of said vault inside, said stone to be placed on its edge across the back end of said vault and in front of it, and at a proper distance is to be placed on its edge a clouded marble slab of same length and width and three inches thick, well dressed and polished on the front side ; the two slabs thus set on edge to support the floor of the platform for coffins, which floor is to be of clouded marble flagging, three inches thick, and completely dressed and polished and cemented together so as to make a level, tight floor six feet long, and reaching from side to side of the vault.

*“ 8.*All of the above work of said vault tobe made in good workmanlike manner, and the vault to be thoroughly durable and substantial, and be completed on or before the 1st day of June, 1875 ; and any additional work the party of the second part may do that is not named in the above specifications, shall be done without any additional charge therefor.

*52“ And the said Samuel Stone does hereby promise and agree to pay said Oscar F. Mehurin *&*Son for said work the sum of $1,050, as follows: $525 to be paid when the work of said vault is completed; $262.50 to be paid in six months after said work is completed; $262.50 in twelve months after said work is completed, this sum to bear six per cent, interest for the last six months.”

The fact was undisputed at the trial that the only excavation made for the foundation of the vault was a trench under the outer walls, nine feet'long by eight feet across the ends, two feet wide and two feet deep. The dirt tilling the space between the trenches was not removed.

It was also conceded that the space in the front wall between the “ solid block of marble ” immediately above the door, and the roof of the vault was filled with four pieces of marble instead of one.

It was also admitted that no flagging stone was placed under that portion of the vault covered by the platform for coffins, and that no slab of sand or other stone was placed on the edge across the back end of said vault to support the platform for coffins.

The plaintiff, O. F. Mehurin, testified without objection, that he cut shoulders in the walls for coffin platforms with *the*defendant’s consent. Both of the plaintiffs testified that the defendant frequently saw the stone and marble while they were engaged in dressing it, and made no objection to it, and expressed himself satisfied with the same.

■ The plaintiffs called Allen Coffin as a witness, who testified that he was a builder and had been employed as such for twenty-two years. Whereupon *“*plaintiff’s counsel read to witness the provision of the contract, as to the way a foundation was to be built, and asked him to state his opinion, as a mechanic, what kind of a foundation it provided for; whether such foundation was to be under outer walls, or was in addition to include an excavation within the space surrounded by the walls, and tilled with stone and cement, as under the walls.” To this question, counsel for defendant objecting, the court sustained the objection, to which ruling the plaintiffs excepted.

*53After the defendant rested his case, the plaintiffs proposed to read sundry depositions to the jury, containing testimony bearing upon the quality of the material that went into the construction of said vault. On objection by defendant the court excluded the depositions and the plaintiffs excepted.

The court among other things charged the jury as follows :

“ That the action to be tried by them was founded on a claim by plaintiffs to recover of defendant the price of building a burial vault.

■ “ That there was a written contract between the parties, containing specifications as the manner and plan of constructing said vault, and fixing the price to be paid by defendant.

“ That in the petition of the plaintiffs it was alleged they had performed all the conditions of the contract on their part, which allegation was denied by defendant.

“ Thus the only issue for the jury was as to performance by plaintiffs according to the terms of the contract.

“ If the contract has been performed, *the*plaintiffs may recover. If not, they are not entitled to recover anything. If the work was done substantially according to the contract it is sufficient.

*“*It is claimed by defendant that the contract was not complied with, because the plaintiffs were required to insert one solid block of marble for the gable—one solid marble^ stone. This was made in pieces, and if considered material by the parties that it should be solid, the contract is broken and plaintiffs cannot recover.

*“*Proof that defendant, if he considered this part of the contract material, did not object to the manner of doing the work in its progress will not avail, for the pleadings do not allege any variation or modification of the agreement, and defendant has a right to recover, because the work is not done as ho contracted.

*“*The court further charged that as matter of law, the contract where it provided for a floor within the vault, was to be construed as requiring such floor to be built so as to extend and occupy the entire space within the walls of said vault, and if *54the jury find such floor had not been made, then the plaintiffs could not recover.”

The plaintiffs excepted to the several charges of the court as above set forth at the time, and such exceptions are made pari thereof.

The plaintiffs asked the court before retirement of the jury, to charge as matters of law, the following, viz.:

I. If the jury find that the plaintiffs entered on the construction of said vault with the intention of complying with the contract, and did construct the same substantially as required by the contract, and as the same was changed by consent of parties during the progress of the work, then plaintiffs are entitled to the contract price, although there may be slight omissions or deviations from the specifications, less the amount which would be required to supply the omissions, or less the difference between the value of the vault as completed, and its value if it had been completed according to contract.

The jury returned a verdict for the defendant on which judgment was rendered. On error to district court, the judgment was affirmed. It is the object of this petition in error to reverse both judgments.

*J. R. Stanbery*and *George B. Srnythe,*for plaintiffs in error.

*Gibson*Atherton, for defendant in error.

Boynton, Oh. J.

If from the conceded facts, the verdict and judgment ought to have been for the defendant, it is immaterial whether the instructions to the jury were correct or erroneous. *Barth*v. *Clise,*12 Wall. 401. The contract required the excavation for the foundation, to be of- the depth of two feet under the whole vault, filled with lime or *“*other good stone well cemented together so as to make a good substantial foundation for the vault.” This, we think, is the plain meaning of'the language as understood by the parties. That such excavation, and the foundation thus provided for, were not made, was conceded at the trial. It also appeared that the spaee in the front wall between the block of marble which was to bear the inscription, and the roof of the vault was filled with *55four pieces of marble. The contract stipulated for but one. Here was a very material deviation from tbe terms of the agreement, and a deviation of such a character as to show a substantial non-compliance by the plaintiffs with the stipulation of the contract. Had these facts appeared on the face of the pe-' tition the case would have been so fatally defective as to have entitled the defendant to judgment on the pleadings:. Being admitted at the trial the same result must follow. The performance by the plaintiffs of the stipulations on their part is a condition precedent to payment by the defendant. The first installment was not to be paid until the vault was completed. Substantial completion is indispensable to the right to call upon the defendant to perform the stipulation to pay. No recovery can be had upon a *quantum*meruit, because, where the contract is express, none can be implied relating to the same subject matter. The principle that conditions precedent to the right to compensation for labor done, or materials furnished, must be substantially performed, in order to put the other party in default, is of universal application, admitting of no exceptions. But technical or unimportant omissions or deviations will not defeat recovery. In the case of *Goldsmith*v. *Hand,*26 Ohio St. 101, the plaintiff’s recovery was sustained on the groundthat the work had been substantially completed according to the terms of the contract.

The judge in his opinion employs language which would lead to the inference that a different rule from the one above stated prevails in regard to building contracts, as respects the performance by the builder; and he cites in support of that view, *Hayward*v. Leonard, 7 Pick. 181. This case, however, in view of its peculiar facts, is not understood by the supreme judicial court of Massachusetts, as laying down any rule peculiar to building contracts. In *Olmstead*v. *Beale,*19 Pick. 528, after stating the general rule to be, that, where under the contract, performance by one party is to precede payment by the other, no recovery could be had either upon the contract, or upon an implied *assumpsit,*where the precedent conditions were not performed, the court say, *“*The cases of *Hayward*v *Leonard,*7 Pick. 181, and *Smith*v. *First Congr. Meeting-house**56*in Lowell,*8 Pick. 178, are neither incompatible with, nor exceptions to the rule. It will be found in these and other similar cases, that there was an express or implied assent to the deviations from the contract, or a *substantial*performance of it. The equitable principle which governs them, and which itself is of recent introduction, only extends to unimportant, accidental and unintentional deviations, which, from the differences of opinion, that so often exist, in relation to the exact requisition in the details of a special contract, had become indispensable to the administration of justice in such eases. Rut where there is an important and voluntary deviation or omission from the contract, the doctrine of *Faxon*v. Mansfield, 2 Mass. 147, will apply, and the contractor can have no remedy for the materials furnished and the services performed.” Indeed, it was said in *Hayward*v. *Leonard,*that, “ when we speak of the law allowing the party to recover on- a *quantum meruit,*or *quantum valebant,*where there is a special contract, we mean to confine ourselves to cases in which there is an honest intention to go by the contract, and a *substantive*execution of it, but some comparatively slight deviations as to some particulars provided for.” The right of the contractor to recover, upon failure to perform, in a case where performance was a condition of payment, by making a compensatory allowance for the loss to the owner resulting from non-performance by the contractor, was denied by the court of appeals of New York, in the very well considered case of *Smith*v. *Brady,*17 N. Y. 173. It was there held that, “when, in a contract for the erection of a building on the land of another, performance is to precede payment and is a condition thereof, the builder having substantially failed to perform on his part, can recover nothing for his labor and materials, notwithstanding the owner has chosen to occupy and enjoy the erection.”

Comstock, J., in announcing the judgment of the court, said: “ The right to recover in such case has never been referred to any doctrine peculiar to such contract. On the contrary, if wo look at the adjudged cases, we shall find that the right, whenever asserted by judicial tribunals, has been supposed to result from a general doctrine applicable as well to other *57contracts,” . . . and that “ there can be no injustice in imputing to the contractor a knowledge of'what his contract requires, nor in holding him to substantial performance.” . . . “ If he fails to perform when the requirement is plain, and when he can perform if he will, lie has no right to call upon the courts to make a new contract for him; nor ought he to complain if the law leaves him without a remedy.” The doctrine of this case 'was affirmed in *Glacius*v. *Black,*50 N. Y. 145, where it was said, that although technical, inadvertent and unimportant omissions or defects, would not defeat recovery, substantial performance must be shown.

In the present case the deviation from the contract above mentioned cannot be regarded as slight or non-substantial. The defendant, as' the contract must be construed unaided by any light that extrinsic proof may have thrown around it, stipulated for a solid bed of stone, well cemented together, for a foundation for the vault; and for its front he stipulated for a marble slab or block for the space immediately below the roof, that would materially add to its beauty if not to its strength and durability. To the fulfillment of these stipulations he was clearly entitled. It is quite immaterial whether in the judgment of the plaintiffs or others, the structure, as ¿ompleted, was as durable as the one contracted for or not. It was the right of the defendant to consult his own judgment and taste and to provide for the construction of a vault that would best accord therewith; and having provided by the specifications of his contract for a foundation of a given character, and for one block of marble to fill the gable of the vault, he was entitled to a substantial compliance by the plaintiffs with the terms agreed upon, before he could be called upon to pay any part of the agreed compensation.

It is said, however, that during the progress of the work the attention of the defendant was called to the character of the material being used the manner of doing the work, and that he expressed Himself as satisfied therewith, and thereby waived a strict performance of the contract. There is no doubt that it was perfectly competent for the defendant to assent to any modification or change in the terms of the contract, and *58that sucli assent, either express or implied, if acted on by the plaintiffs, would be binding upon the defendant *Thurston*v. *Ludwig,*6 Ohio St. 1. But there was no modification or change in the terms of the contract pleaded. The petition counted upon the performance of the original contract. The answer, in effect, denied performance, and the issue thus raised was the' only one involved in the case.

A waiver, by one party to an agreement, of the performance of a stipulation in his favor, is not a performance of that stipulation by another. It is an excuse for non-performance, and as such should be pleaded. *Palmer*v. *Sawyer,*114 Mass. 13. 2 Chitty on Pl. (7th Eng. ed.) 459.

An exception to this rule is said to prevail iii actions by an indorsee against the indorser of a promissory note, where evidence of a waiver of demand and notice is held admissible and sufficient to support an allegation that demand was made, and notice given. *Harrison*v. *Baily,*99 Mass. 620; *Pugh*v. McCormick, 14 Wall. 374; 2 Greenl. Ev. § 197. See *Myers*v. *Standart,*11 Ohio St. 29. Also, *Burgh*v. *Legge,*5 M. *&*W. 418. But in other cases the rule prevails requiring the plaintiff to plead the facts necessary to establish the right to recover. And it is no. answer to a failure to plead the necessary facts to say that evidence tending to show a waiver was admitted, without objection; for let this be so, and still it was not the right of the plaintiffs under the issue to have the effect of such evidence determined by the jury. To entitle a party in such case to have the evidence considered as a matter of legal right, he should amend his petition. There is no doubt that-the court, in such a case, may properly direct the jury to find the fact according to the evidence admitted, and order the pleadings to be amended to conform thereto. But the power of the coui’t to admit the evidence and oi’der the amendment, and the right of a party to have the power exercised, are very different propositions. It certainly is not ex’ror for the court in its instructions to the juxy, to dix’ect them to consider sxxch evideixce only as x’elates to the issue made by the pleadings.

Nor did t-lxe court err inx’efusing to permit the witness, Coffin, to give his opinion, as a mechanic, as respects the kind of *59a foundation for the vault the contract provided for. "W aiving the question as to his qualifications to speak as an expert, it is a sufficient answer to the claim, that in refusing to accept the advice of the witness as to what the contract meant, the court erred, to say, that the record does not disclose what opinion the witness would have expressed. To make the wrongful exclusion of evidence available to the party offering it, the record should show, affirmatively, what the evidence would have been, in order to determine whether prejudice to the party resulted from its exclusion. *Gandolfo*v. State, 11 Ohio St. 114; *Oviatt v.*State, 19 Ohio St. 573.

It is finally objected that the court erred in refusing to permit the plaintiffs to read in rebuttal the depositions of sundry witnesses relative to the character of the materials furnished for the vault. In excluding the depositions the court did not err. The answer, although specifically enumerating the particulars in which the work and material failed to conform to the contract, amounted only to a general denial of the averment of the petition, that the plaintiffs had performed the condition of the contract by them to be performed. It contained no new matter, and hence needed no reply. *Simmons*v. Green, 35 Ohio St. 104.

The burden of proof was on the plaintiffs. The attitude of the defendant was purely defensive. A party upon whom the affirmative of an issue devolves is bound to give all his evidence in support of the issue in the first instance, and he can only give such evidence in reply as tends to answer the new matter introduced by his adversary. Any. relaxation of this rule is but an appeal to the sound discretion of the court in which the issue is tried. This is the rule laid down in *Graham*v. *Davis,*4 Ohio St. 362, and in its application to eases of this character needs but to be stated to secure assent to its correctness.

*Judgment*> *affirmed.^*