dissent"> Mr. Justice Woods

dissenting.

1 I dissent. The plaintiff, Warren, and the defendant, Shealy, made a contract by which Warren agreed to build for Shealy a house. Shealy agreed to furnish all the lumber and pay Warren for the house two hundred and twenty-five dollars, in instalments. This proceeding was instituted to foreclose a mechanic’s lien for a balance of one hundred and fifteen dollars alleged to be due Warren on the contract price. These issues were submitted to the jury: “First. *118 Was the work done by the petitioner on the building of the defendant done by him in accordance with the contract between the parties? Second. If you answer the first question, 'yes,’ how much, if anything, is due the petitioner by the defendant for the work done by the petitioner ? Third. If you answer the first question, ‘no,’ then say whether' the defendant has been damaged by the acts of petitioner; and if you find he has, how much?”

The Circuit Judge instructed the jury that there was no evidence of damage to the defendant, Shealy, by the acts of the petitioner, Warren, and withdrew the third issue from the jury. I can not escape the conclusion that this was error. There was evidence that the work was very inferior in a number of particulars, and that the defendant was obliged to have some of it torn out and done over. There was evidence also that the defendant, in order to remedy these defects and complete the house, found it necessary to expend one hundred and fifty-one dollars and forty-five cents. This evidence tended to show breach of the contract on the part of the contractor and damage resulting therefrom. This being so, it seems to me it was error to withdraw the issue as to whether the defendant had been damaged by the acts of the petitioner, and the extent of the damage.

It does not seem a sufficient answer to say that this error was rendered immaterial by the finding of the jury, in response to the first issue, that the petitioner had done the work in accordance with the contract. The first and third issues were very closely connected. When the Circuit Judge instructed the jury that there was no evidence that the defendant had suffered any damage from any acts of the petitioner, — that is, from any breach of the contract by the petitioner, — it is highly probable, at least, that this opinion of the Court entered as an important factor into the jury’s conclusion that the petitioner had not breached his contract.

*119 Nor does it seem a sufficient answer to- say that the defendant’s witnesses did not estimate in dollars and cents the amount of damages. A description of the house and of the precise nature and extent of the defects appeared in the evidence, and thus a basis was furnished for the jury to make their own estimate of damages.

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