¶1Under the plea of non est factum, in an action of covenant, neither a mutual abandonment of the contract between the parties, nor the non-performance by the plaintiff of conditions precedent, can be given in evidence.
¶2In an action of covenant on a contract by which the defendant agreed to build a house for the plaintiff, to be paid for by the conveyance of a house and lot by the plaintiff to the defendant, the breach assigned and proved being the neglect to build the house, the differ*15ence in value between the house and lot to be conveyed, and the house to be built, is, as against the defendant, a proper measure of damages.
¶3No statement of special damages was necessary to entitle the plaintiff to give evidence of such difference in value.
¶4A party cannot object that the measure of damages fixed at the trial was more favorable to him than the pleadings and evidence would justify.
¶5(S. C., 10 N. Y. 371.)