No doubt the contract price is important evidence of the value of the performance to the defendant. The cost of the labor and the materials is also important evidence, but by no means the only evidence. The value of part performance of a contract of service may be largely destroyed because the contract is not completed. The value of a building erroneously built may bear no particular relation to either contract price or cost. The benefit to the defendant here is "the fair market value of the thing produced." 75 To this statement it has been objected:76 "Whether the investment in the building turns out profitably or unprofitably to the owner, is of no consequence. The value of the building to the owner, apart from other considerations, cannot affect the price to be paid. If, through bad management, miscalculation or misfortune for which the builder is not responsible, the owner is unable profitably to use the building for the purpose for which it was intended, this cannot be shown to diminish the sum to be recovered. A building may be so constructed for use in a particular kind of business that it would be worth but little for any other use, and before it is completed the business may become unprofitable, and the building be of little value on that account. No one will contend that in such a case the recovery of the builder is to be limited by the value of the building to the owner. If a house is erected by a contractor on foundations provided by the owner, and the foundations settle so that it becomes unsafe and must be taken down, it will hardly be contended that the quantum meruit to be recovered by the contractor who has substantially performed his contract but has fallen short of complete performance of it is to be reduced to nothing because the building is worth little or nothing to the owner." But if unsalable personal property were made upon a special order the buyer could refuse to take title, and if in ignorance of its defects he took title, according to the more general view he could rescind,77 and the seller would have to bear the loss. In the case of a building it is the owner's misfortune that he cannot return it in specie, but the builder's wrong is the cause of the situation which has arisen, and there seems no reason why the owner who from the necessity of the case is compelled to buy something he never agreed to, should pay him for it more than it is worth to him. The same argument is applicable to a partly performed contract of service.
74 The opinion continues:"If authority is needed for the general proposition that in case work is improperly done, the plaintiff has not the same right to recover the value of his work plus the value of his materials, that he has when it is properly done, and that what he is entitled to in such a case is the value of the thing produced by his work, it may be found in Farnsworth v. Garrard, 1 Gamp. 38; Hill v. Featherston-haugh, 7 Bing. 669; Huntley v. Bulwer, 6 Bing. (N. C.)' Ill; Bracey v. Carter, 12 A. & E. 373; Thornton v. Place, 1 Mood. & Rob. 218; Denew v. Daverell, 3 Gamp. 451; Cutler v. Close, 5 C. A P. 337; Duncan v. Blundell, 3 Stark. 6. Farnsworth v. Garrard was cited with approval in Snow v. Inhabitants of Ware, 13 Met. 42." See further to the effect that the benefit to the defendant, not the value to the plaintiff is the test. Skowhegan Water Go. v. Skowhegan Village Corp., 102 Me. 323, 66 Atl. 714; Eaton v. Gladwell, 121 Mich. 444, 80 N. W. 292; Germain v. Union School Dist., 158 Mich. 214, 122 N. W. 524, 123 N. W. 798; Dyer v. Jones, 8 Vt. 205; Kelly v. Bradford, 33 Vt. 35;
Viles v. Barre Ac. Co., 79 Vt. 311, 65 Atl. 104.
In Skowhegan Water Go. v. Skowhegan Village Corp., 102 Me. 323, 331, 66 Atl. 714, the court said: "In some of these and other similar cases, reference is made to the 'deduction' 'recoupment' or 'set off' of the defendant's damages for the obvious purpose of indicating a convenient process or method of ascertaining what the services rendered by the plaintiff were reasonably worth, and not with the intention of casting upon the defendant the burden of proving the value of the plaintiff's services. It is incumbent upon the plaintiff in such cases to prove the value of the work done or materials furnished by him. The question of recoupment, properly so termed, is not involved. But if the plaintiff's breach of the contract be such as to subject the defendant to consequential damage, that may be the foundation for a legitimate claim in recoupment, with respect to which the burden of proof would be upon the defendant." Gillis v. Gobe, 177 Mass. 584, 59 N. E. 455.
75 Gillia p. Cobe, 177 Mass. 584, 504, 59 N. E. 455.
76 Knowlton, J., diss, in Gillia v.
Cobe, 177 Mom. 584, 802, 59 N. E. 455.
77 See supra, Sec. 1462.