, The same court not infrequently in different decisions suggests measures of damages which are inconsistent with each other. The matter may be illustrated with actual figures. Let it be supposed that a contract for building a house is made and the contract price is 10,000. Owing to a rise in the cost of building or to the contract being originally an unfortunate one for the builder, the cost of labor and materials to fulfil the contract is such that the total cost would be $12,000. The builder is compelled by lack of means to stop when the work has been 9/10 completed. If the builder recovers the contract price less the cost of completion he will get $8,800. If such damages as the defendant has suffered from the breach are deducted from the sale and delivery of logs); Hayward v. Leonard, 7 Pick. 181, 19 Am. Dec. 268 (building contract); McMillan v. Mal-loy, 10 Neb. 228, 234, 4 N. W. 1004, 36 Am. Rep. 471 (contract for threshing); Hildebrand v. American Fine Art Co., 109 Wis. 171, 179, 85 N. W. 268, 53 L. R. A. 826 (services). Cf. Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455; Murphy v. Sampson, 2 Neb. (Unof.), 297, 96 N. W. 494.
67 JEtna Iron Works v. Kossuth County, 79 la. 40, 46, 44 N. W. 215 (building contract); Hillyard v. Crab-tree, 11 Tex. 264, 62 Am. Dec. 475 (contract of employment).
68 Pelatowski v. Black, 213 Mass. 428, 430, 100 N. E. 831; Gove v. Island City etc. Co., 19 Or. 363, 24 Pac. 521. The cases cited above relate to building contracts. See also a similar rule applied to other contracts. United States v. Molloy, 144 Fed. 321, 75 C. C. A. 283,11L. R. A. (N. S.) 487; McKnight v. Bertram Heating etc. Co., 65 Kan. 859, 70 Pac. 345; Bedow v. Tonkin, 5 S. Dak. 432, 59 N. W. 222; Carroll v. Welch, 26 Tex. 147.
69 Burke v. Coyne, 188 Mass. 401, 404, 74 N. E. 942. The court here presumably means to apply the test which is applicable to cases where the defendant is the wrongdoer, with the addition of a right of recoupment. Somewhat similar statements are made in Davis v. Badders, 95 Ala. 348,10 So. 422; Pinches v. Swedish Church, 55 Conn. 183,10 Atl. 264; White v. Oliver, 36 Me. 92; Decker v. School District, 101 Mo. App. 115, 74 S. W. 390; Dan-forth v. Freeman, 69 N. H. 466, 43 Atl. 621.
contract price the result will often be the same, but if the building is defectively built instead of partially built, the results may be quite different. The latter form of statement is the better because the more universal in its application, but it is an accurate statement of damages in an action on the contract, not on a quasi-contractual obligation. If there be deducted from the contract price ($10,000) the amount by which the value of the plaintiff's performance (9/10 of the total value of the agreed performance, i. e., $12,000) falls short of what that value would have been if the contract had been exactly performed ($12,000) the figures obtained for the plaintiff's recovery are again $8,800. In each of these forms of statement the defendant's right of recouping his damage for breach of the contract is recognized, and they are each sufficiently accurate if the contract were the cause of action. But if the value of the labor and materials is assumed to be 9/10 of $12,000, and from this there be deducted the expense necessary to complete the work (1/10 of $12,000) the plaintiff will recover $9,600. Again if the plaintiff recovers such a part of the contract price as his actual performance bears to his agreed performance he will get 9/10 of $10,000 or $9,000.