the error, if such it was, is not, in view of the whole record, available to the appellant.

After overruling the motion for the non-suit, and the appellant having offered no proof in support of her answer, the court submitted the case to the jury upon the theory outlined in the following instruction: "The court charges you that the only question for you to determine in this case is what the work and material which the plaintiff furnished to the defendant Mary McGrath in the construction and repair of the house in question herein is reasonably and fairly worth, taking into consideration the character of the work and material and all the circumstances surrounding the transaction. The court charges you that the plaintiff is entitled to recover in this action the reasonable value of such work and material as determined by the above instruction. The court charges you that, by the admissions in the complaint in this action, the plaintiff has already been paid the sum of $324.27, and if you find from the evidence that the reasonable value of the work and material furnished by the plaintiff to the defendant Mary McGrath is less than that, or only equal to the amount already admittedly paid by the defendant, then the plaintiff is not entitled to recover in this action; but, if you find that the reasonable value of said work and material is greater than that amount, then the platintiff is entitled to recover the difference between what you find was the reasonable value of the work and material furnished by the plaintiff, less the amount which it is admitted has been paid; but in no event can your verdict be for more than $552.73." Appellant excepted to this instruction, and now urges that the court erred in submitting the case upon the theory that the action was one as upon quantum meruit, and not upon an express contract.

If the complaint alone were considered, there would be some force to the contention that the action was based upon an express contract, and that the cause of action stated was one to recover the amount stipulated in the contract for the construction and completion of the buildings, less the

amount paid by appellant; but when we consider the fact that respondent's counsel, with the consent of counsel for the appellant, made the amendment referred to to the complaint, and if, in connection with this, we consider that part of appellant's answer wherein she averred that the reasonable value of the buildings was much less than as claimed by respondent, and, further, that the cause was tried and all the evidence introduced was directed to the question of the reasonable value of the buildings, there is but little left for the contention to rest upon. Moreover, appellant practically abandoned all of the defenses set forth in her answer, except the one with regard to the reasonable value of the buildings, and this, so far as it was pursued by her, was done upon the cross-examination of respondent and his witnesses. The contention therefore now made by appellant that, in an action based upon an express contract, there can be no recovery as upon quantum meruit, is not applicable to the record in this case. Nor is the claim tenable that, where there is an express contract entered into between parties for the construction of a building, an action as upon quantum meruit to recover for labor performed and material furnished in erecting the building cannot be maintained. It is quite true that a party entering into a contract of this character may not abandon the contract and recover more than the contract price upon a quantum meruit; but there may be cases where the stipulations of the contract have been departed from either by express consent of the parties or by implication through their conduct in making changes in materials, workmanship, or structure by reason of which it may become a matter of doubt whether the contract, as a whole, has been abandoned or not. In such cases the contractor may, in the first instance, sue as upon a quantum meruit, and leave it to the defendant to set up and insist upon the contract for the purpose of limiting the recovery to the price stipulated therein. The defendant may in such a case likewise insist that the stipulations of the contract remain in full force and have not been performed, and may demand damages for a

the

noncompliance with the terms of the contract. The contractor may, however, in such cases, also base his action upon both the contract and upon a quantum meruit by setting up the former in one count and the latter in another in his complaint. In all such cases a recovery by either party will be allowed in accordance with the facts developed at the trial and the law applicable thereto. Again, a contractor, in case the contract is fully performed, and nothing remains except to obtain payment, may sue to recover the amount unpaid without specially declaring upon the contract. These propositions have been discussed and passed upon many times by the courts, and are illustrated and applied in the following cases: Todd v. Huntington, 13 Or. 9, 4 Pac. 295; Schwartzel v. Karnes, 2 Kan. App. 782, 44 Pac. 41; Board of Com'rs v. Gibson, 158 Ind. 471, 63 N. E. 982; Moore v. Gaus Sons' Mfg. Co., 113 Mo. 98, 20 S. W. 975; Burgess v. Helm, 24 Nev. 242, 51 Pac. 1025; Wilson v. Smith, 61 Cal. 209.

Undoubtedly, one may not depart from the stipulations of his contract, and then sue and recover as upon a quantum meruit. Neither is the contractor prevented from recovery upon a contract in case he has not literally complied with all the terms and conditions therein imposed. A substantial compliance, if made in good faith, and so as to make the thing contracted for useful and beneficial to the owner for the purposes for which it was intended and in compliance with the true intent and spirit of the contract, in most instances, is a sufficient compliance to permit a recovery upon the contract, with the right of the owner to recoup any damages he may have sustained by reason of the contractor's failure to literally comply with the terms of the contract. While the cases cannot all be reconciled, and the courts of some states adhere to one rule, while those of other states follow another, we think the trend of modern decision is to the effect as outlined above; but if we assume in this case that the complaint, when technically construed, declared upon an express contract, still, in view of the whole record, appellant was not prejudiced in any of her substantial rights. This

is well illustrated in the case of Burgess v. Helm, supra, by the Supreme Court of Nevada, where the complaint was directly based upon an express contract; but the evidence, as in this case, was limited to and established a right of recovery upon a quantum meruit merely. In the syllabus of that case, which fairly reflects the decision of the court, the rule is stated thus:

"Where an action is brought for the price of services fixed by an express contract, and there is only proof as upon a quantum meruit, the variance between the pleading and the proof may be disregarded, and a recovery by plaintiff sustained, unless the defendant was misled thereby in his defense."

In Abbott's Trial Evidence (2 Ed.), 453, the author states the rule in the following language:

"Under an allegation of a contract to pay a specified rate of compensation, plaintiff may prove a promise to pay what the services were reasonably worth, or an implied promise to pay usual compensation. The variance is immaterial, if the defendant is not misled."

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It is sometimes asserted that this rule applies only to contracts for personal services. The Supreme Court of Missouri, however, in Moore v. Gaus Sons' Mfg. Co., supra, clearly demonstrates that such is not the case, and that the rule applies to building and other similar contracts. doubt, if upon the trial the evidence were objected to as not relevant under the issues, and if it is not admissible under the allegations contained in the pleadings, then the evidence should be excluded, and, if admitted in such a case over the objection of the defendant, it might constitute reversible error; but if the evidence is admissible under the allegations. of the complaint, or is not objected to, then the rule above announced should be held to apply. In this case the record makes it too clear for controversy that appellant was not misled. Indeed, this was the theory of the only affirmative defense she relied upon at the trial. True, she insists that the respondent did not prove that the contract had been fully performed, and that the buildings were constructed and completed "to the acceptance and approval of herself and

husband;" but the evidence is sufficient to authorize a recovery upon the theory upon which the case was tried and submitted to the jury by the court. In view of the whole record, we are persuaded that appellant was not prejudiced on the trial or by the submission of the case to the jury.

Appellant, however, further contends that, although it be held that the case was properly tried and submitted to the jury, nevertheless the verdict and judgment are not supported by the evidence, that they are contrary to law, and that the amount allowed by the jury is excessive. This contention, it seems to us, must, in part at least, be sustained. As we have seen, it is respondent's contention that the complaint, after the amendment, declared as upon quantum meruit, and not upon an express contract; that he tried the case and submitted it to the jury upon this theory. This contention we have attempted to sustain in what has been said. The question therefore arises: Is there any evidence from which the jury were authorized to find that the respondent was entitled to recover the amount found due by their verdict? In this regard the contractor who furnished the material and constructed the buildings testified as to the material and labor required in their construction, and that the buildings, after he had completed them, without painting and plumbing, and some other minor details, were of the reasonable value of $324.25. In fact, the contract under which he agreed to do the work was for $295 only. The difference between the two amounts last named was for some changes that were made by him. He also testified that there was some profit in the contract for him, but that he did not figure up what it was. The value of all other labor and material, exclusive of the $324.25, that was used in the building, after allowing for clearing away the debris of the old building after the fire, and including ten per cent. on the whole amount as compensation to the respondent for overseeing the work, as he called it, amounted to the sum of $289.35. This left a difference of $263.40, between the $552.73, claimed by respondent, and the reasonable value as testified to by him and his witnesses. When he was asked