brought for the money, non-performance of the work is of course a good defence; but if there is a part performance, and this is a performance of the whole substance of the contract, and an omission only of what is* incidental and unimportant, (j) it is a sufficient performance; but the contract may expressly and in special terms, provide that these formal, incidental, and non-essential parts shall be done, and then they are made by the parties matters of substance. Thus, if the time be set in * which certain work is to be done, it is not in general so far of the substance of the contract, that if the work be done, but not until some days later, no compensation will be recovered; but an action for the price will be sustained, leaving the defendant to show an injury he has sustained by the delay, and use it in reduction of damages, by way of set-off, or to sustain a cross action according to the circumstances of the case. (k) But if the parties see fit to stipulate in unequivocal language that no money shall be paid for the work unless it is done within a fixed time, both parties will be bound by their agreement. (l) Although we should say that even then the promisee would not be permitted to receive and retain the work after the due time of delivery, and make no compensation. Either his acceptance would amount to a waiver of the condition of time, or the other party might have his action on a quantum meruit.

(j) Thus, in Gillman v. Hall, 11 Vt. 510, A contracted to build $60 worth of stone-wall for B, of a given length, height, and thickness. He built a wall worth $60, but in some parts it was not of the given height, the deficiency being made up in extra length. He was allowed to recover on a quantum meruit, on the ground that there had been a substantial compliance. See also Chambers v. Jaynes, 4 Barr, 39, that a substantial bona fide compliance is all that is necessary. And see ante, p. • 523, n. (i).

(k) Thus in Lucas v. Godwin, 3 Bing. N. C. 737, A contracted to finish some cottages by the 10th of October. They were not finished until the 15th. The defendant then accepted them, and he was held bound to pay on a quantum valebant. See also Porter v. Stewart, 2 Aik. 417; Warren v. Mains, 7 Johns. 476; Lindsey v. Gordon, 13 Me. 60; Smith v.

Gugerty, 4 Barb. 614. But in most or all of these cases it is to be noted, that there had been an acceptance by the defendant after the time stipulated in the contract. See ante, p. * 523, n. (i).

(l) Kent v. Humphreys, 13 Ill. 573; Westerman v. Means, 12 Penn. St. 97; Liddell v. Sims, 9 Smedes & M. 596 ; Tyler v. McCardle, id. 230. In Sneed v. Wiggins, 3 Ga. 94, A recovered two judgments against B, who being about to appeal, A agreed in writing, that if he would not appeal, he (A) would give certain time for the payment of the amount due by instalments, "provided that if any of the instalments should not be paid at the time specified, then A should proceed with his execution." Held, that time was of the essence of the contract; and that B having failed to pay one of the instalments when due, was not entitled to relief in equity.