¶1But two exceptions appear in this case. The first arises upon the plaintiffs' objection to the defendants' offer to prove that the house which plaintiff had erected was not as well built as the Phillips Reynolds' house mentioned in the testimony. The objection was put upon the ground that the witness was neither a mason nor an expert, and was overruled. The only part of the witness's testimony which can be considered as given under this offer, is his statement that the compactness of the work in the building erected by plaintiff would not compare with the Reynolds building. I do not see that either a mason or an expert was required to speak to this point. A man with eyes was competent to make the comparison and speak to the fact which building was the more compact.
¶2The other exception is taken to the statement of the witnessTown, who said that he should not think the wall worth covering; and that the materials were worth more than the wall. This expression of opinion was objected to only upon the ground that witness was not a mason. It appeared that he had been a carpenter and house joiner by trade for twenty-two years, and had worked some on stone buildings, some on brick and some on cobble-stone, but mostly on wooden buildings. Under these circumstances I do not think he was less competent to express an opinion whether the wall was worth covering, or of less value than the materials employed in building it, than a mason would have been. Upon neither of these exceptions ought the report to be disturbed.
¶3The report of the referee finds certain facts specially, upon which, as matter of law, judgment has been given for the defendant. To these determinations of law no exceptions appear, by the record, to have been taken as required by the Code of 1848, under which the case was tried, (§§ 223, 227), though there is a statement that something of that sort was done, contained in the printed case, without, however, any specification of the exceptions. Under these *95 circumstances we are hardly warranted in looking into the questions sought to be presented. The referees have found, taking their two reports together, that the defendants made a special contract with plaintiff to build them a cobble stone building out of materials furnished by defendants in a good, skilful and workmanlike manner, at a price to be paid when the work should be so completed. That the plaintiff performed the work in so unskilful, negligent and unworkmanlike a manner, that the walls are cracked, warped and unsafe, and cannot be made good and safe without taking down and rebuilding two-fifths of the same. That defendants have not accepted the work, nor waived a faithful, skilful and workmanlike performance of the contract.
¶4 They also found the value of the good wall, exclusive of materials, to be, _______________________ $161 60 The expense of taking down the bad wall, _____ 57 00 _______ $104 60 That plaintiff did extra work on the building for defendants to __________________________ 4 40 _______ Making the whole value of the plaintiff's work to the defendants, _________________________ $109 00
¶5subject to a deduction of such damages as defendants may have sustained by loss of the use of the building. If under these circumstances the plaintiff, who has substantially failed to perform his contract, and who does not even manifest a willingness to complete his undertaking by replacing his bad work with good, can compel the defendants to accept his work and pay for it what a jury shall say it is worth, it is not a little extraordinary.
¶6In Champlin v. Rowley (18 Wend., 187), it was held that where personal property was delivered under a contract for the purchase of a larger amount than that delivered, at a price to be paid on the complete delivery, and there was no fault, acquiescence or waiver of strict performance on the *96 part of the vendee, the vendor could not sustain an action against the vendee for any compensation for the part delivered. The chancellor, who delivered the only opinion, considered the case of Britton v. Turner (6 New Hamp., 481), the doctrine of which would sustain the plaintiff's case here, and held it not to be in accordance with the law of this state.
¶7The other cases in this state to which we were referred as sustaining the plaintiff's claim do not conflict with Champlin v. Rowley. Linningdale v. Livingston (10 John., 57) went upon the ground that performance had become impossible by the act of the defendant. Jennings v. Camp (13 John., 94) decidedly favors the defendants' position, and is not reconcilable with the plaintiff's recovery.
¶8Jewell v. Schroeppel (4 Cow., 564) was put upon the ground that the defendant had by his conduct waived all right to object to the plaintiff's performance on the ground that the work was not done in time. In the case at bar it is on the contrary found that no waiver existed.
¶9The foreign cases cited are no more available. Oxendale v.Wetherell (9 B. Cr., 386) was overruled expressly inChamplin v. Rowley; and Hayward v. Leonard (7 Pick., 181) and Smith v. Lowell (8 Pick., 178) stand upon the same ground with Britton v. Turner.
¶10In Mead v. Degolyer (16 Wend., 632), all the cases up to that time are carefully considered; and although COWEN, J., dissented from the opinion of the court by BRONSON, J., yet both the judges agreed in their views of the law upon the point we are considering. This case occurred intermediate to the decisions of the supreme court and the court of errors in Champlin v.Rowley, and is valuable as showing that all the cases had been there considered.
¶11Without spending more time upon the point, which we consider clear upon authority, we are of opinion that no recovery can be had for work done under a special contract, where the work has neither been accepted, nor a faithful, *97 skilful and workmanlike performance of it waived, unless the party seeking to recover can show a performance of the contract.
¶12The judgment ought to be affirmed.