If performance of the contract has not been waived by the adversary party no recovery upon the contract can be had when the contract has not been at least substantially performed.1 The question as to liability for benefits received where the work is accepted with knowledge of defects is discussed elsenot performed substantially by constructing a vault the ends of which are not solid blocks of stone, but are pieced together out of a number of small blocks.12 So a contract for building a retaining wall is not substantially performed where it bulges nine inches.13 Thus a contract to put in a steam plant is not substantially performed where an engine of specified horsepower, required by the contract, has not been set up.14 If the contract calls for a boiler of one hundred fifty per cent of the capacity of the boiler already in use; and the boiler actually furnished has only eighty-two per cent of such capacity, there is no substantial performance.15 So a contract to put in an elevator to have a certain capacity to lift a certain number of feet and to be " suitable for passenger and freight service "is not substantially performed where it has considerably smaller capacity and will not come down to the first floor or go up to the top by four inches.16 A contract to provide boilers for heating, to have a capacity of one hundred forty nominal horse-power and to meet two other requirements, is not substantially performed by furnishing boilers of a capacity of one hundred thirty nominal horse-power, though the other requirements are complied with.17 A contract to furnish a steam heating apparatus of a capacity to warm each room of a greenhouse to seventy degrees in the coldest weather, with a boiler of capacity for a continuous run for ten hours, is not substantially performed by raising the temperature to seventy degrees for a short time during very cold weather.18 A contract to construct a furnace to heat a dwelling to a given temperature by means of hot air is not substantially performed if in fulfilling the requirement as to temperature the furnace generates coal gas and fills the house with it so as to render the rooms unsuitable for use.19 An architect who is to furnish plans and specifications for a building and an estimate of its probable cost, cannot recover if the actual cost of the building greatly exceeds his estimate.20 So if he is employed to draw plans for a building at a cost not to exceed four thousand five hundred dollars, he cannot recover if he draws plans for a building estimated to cost more than eight thousand dollars.21 A contract to convey realty subject to certain encumbrances is not performed substantially by offering to convey with greater encumbrances, but with a covenant in the deed to reduce them to the amount contracted for.22 A contract to locate a business,23 is not substantially performed by merely constructing the buildings in which it is expected that such business will thereafter operate; nor is a contract to locate the business of a specified corporation in a certain city substantially performed by transferring the business and good will of the corporation to a partnership formed of men who were interested in such corporation and who transfer such business to such city.24 A contract to obtain an assignment of a note on deposit as collateral security for one debt, as further security for another, is not performed substantially where an assignment is made, valid as between parties but invalid as to attaching creditors.25 A contract to bring suit to contest the legality of certain charges is not substantially performed where such suit is brought, but is dismissed before final judgment without the consent of the promisee.26 A contract requiring a shipment of goods between specified dates by "sailer or sailers," is not performed substantially by shipping such articles by steamer not within such dates.27 A contract to sink a well to such a depth that water would be reached, is not2 If the building is materially different from that contracted for, no substantial performance can be said to exist.3 In building contracts a deviation from the terms of the contract which cannot be corrected without a partial4 or total5 reconstruction of the building, cannot be corrected by a mere recoupment of damages6 and is not substantial performance.7 Thus a contract to build a building fifty feet by one hundred fifty feet in size is not substantially performed by building one seventy-eight feet by one hundred feet, even if more valuable than the building contracted for, and even if the contract was merely for mortgage security.8 Where the girders are not of the length contracted for and a wooden partition is omitted there is no substantial performance ;9 so if the roof is less than the required pitch, and the shingles are in part of inferior quality and poorly laid, leaving many holes in the roof, and the siding is unsound and split, leaving holes in the side of the building.10 So a contract to build a monument is not substantially performed if of different dimensions from those specified in the contract.11 A contract for constructing a burial vault, the ends of which are to be of solid pieces of stone is performed substantially by sinking a shaft which is abandoned before water is reached.28 A contract by a warehouse company, to keep cotton of a bailee insured in his name, is not substantially performed by keeping all the cotton in the warehouse, including that of the bailee, insured by a policy taken out in the name of the warehouseman.29 A contract of employment is not performed substantially where the employe, during each month of his employment, embezzles money belonging to his employer.30 Hence, under a contract of hire from month to month, the employe can recover nothing. A contract to lay water pipes through the land of a person, and to close the trenches up well and sufficiently, and make good the land and premises, is not performed substantially where the trenches are so filled up that the ground there is in places two feet above the original level.31 A contract to run a boundary line between two adjoining lots, and then to re-trace it, is not substantially performed where it is run and the person running the line then sights back along the stakes and decides that the line is straight.32 A deliberate and material departure from the terms of the contract, prevents substantial performance, even though the work done may be as good or as valuable to the promisee as the work agreed to be done.33 A contract to construct sewers, using certain material, is not performed substantially where material different from that specified, although as good for practical use, is employed.34 If the joists are farther apart than the contract requires no recovery can be had on the contract though the house is strong enough.35 A contract to form a partnership is not substantially performed by forming a corporation.36 A contract to construct a system of waterworks, to furnish two hundred and fifty thousand gallons a day, is not substantially performed by constructing a system which furnishes only fifty thousand gallons a day.37 Literal performance may exist though substantial performance is lacking. The law does not regard this as performance.38 A contract for an electric light plant, to be paid for when " found to be in good working order "is not performed by so constructing the plant that it works properly at the very moment of completion, but soon proves deficient.39

36 Dalzell v. Watch Case Co., 138 N. Y. 285; 33 N. E. 1071.

37 Cottage Hospital v. Merrill, 92 la. 649; 61 N. W. 490.

38Guetzkow Bros. Co. v. Breese, 96 Wis. 591; 65 Am. St. Rep. 83; 72 N. W. 45.

39 Newport v. Bridge Co., 90 Ky. 193; 8 L. R. A. 484; 13 S. W. 720.

40 Craig v. Weitner, 33 Neb. 484; 50 N. W. 442.

1 Greene v. Linton, 7 Port. (Ala.) 133; 31 Am. Dec. 707; Bull v. St. Johns, 39 Ga. 78; Swanzey v. Moore, 22 111. 63; 74 Am. Dec. 134; Angle v. Hanna, 22 111. 429; 74 Am. Dec. 161; Barr v. Henderson, 105 La. 691; 30 So. 158; Gill v. Vogler, 52 Md. 663; Olmstead v. Beale, 19 Pick. (Mass.) 528: Taylor v. Marcum, 60 Minn. 292; 62 N. W. 330; Nelichka v. Esterly, 29 where.

Minn. 146; 12 X. W. 457; Butt v. Williams (Miss.), 15 So. 130; Earp v. Tyler, 73 Mo. 617; Miller v. God-dard, 34 Mo. 102; 56 Am. Dec. 638; Henson v. Hampton, 32 Mo. 408; Omaha Consolidated Vinegar Co. v. Burns, 44 Neb. 21; 62 S. W. 301; Jennings v. Camp, 13 Johns. 94; 7 Am. Dec. 367; Mehurin v. Stone, 37 O. S. 49; Martin v. Schoenberg, 8 Watts & S. (Pa.) 367; Kelley v. Bradford, 33 Vt. 35.

2 See Sec. 1603, 1604.

3Braseth v. Bank, - N. D. -; 98 N. W. 79.

4 Sarrazin v. Adams, 111 La. 124; 34 So. 301; Spence v. Ham, 163 N. Y. 220; 51 L. R. A. 238; 57 N. E. 412.

5 Swain v. Seamens, 9 Wall. (U. S.) 254.

6 Elliott v. Caldwell, 43 Minn.

357; 9 L. R. A. 52; 45 N. W. 845.

7 Perry v. Quackenbush, 105 Cal. 299; 38 Pac. 740; Eaton v. Glad-well, 121 Mich. 444; 80 N. W. 292; Anderson v. Pringle, 79 Minn. 433; 82 N. W. 682; Spence v. Ham, 163 N. Y. 220; 51 L. R. A. 238; 57 N. E. 412.

8 Swain v. Seamens, 9 Wall. (U. S.) 254.

9 Spence v. Ham, 163 N. Y. 220; 51 L. R. A. 238; 57 N. E. 412.

10 Cornish, etc., Co. v. Dairy Association, 82 Minn. 215; 84 N. W. 724. The contract is not performed even if it was for the erection of a creamery, and the building could be rebuilt for one-fifth of the entire cost of the creamery.

11 Cutler v. Dix, 67 Vt. 347; 31 Atl. 780.

12 Mehurin v. Stone, 37 0. S. 49.

13 Lynes v. Hall, 60 Minn. 532; 63 1ST. W. 108. The wall was thirty-feet long. No adequate reason to rebut the inference of poor workmanship was shown for the bulging of the wall.

14North v. Mallory, 94 Md. 305; 51 Atl. 89.

15 Manitowoc, etc., Co. v. Glue Co., - Wis. - ; 97 N. W. 515.

16 Clarke v. Machine Co. (Ky.), 42 S. W. 844.

17 Heine Safety Boiler Co. v. Francis, 117 Fed. 235; 54 C. C. A. 267.

18 Kramer v. Messner, 101 la. 88; 69 N. W. 1142.

19 Fuller-Warren Co. v. Shurts, 95 Wis. 606; 70 N. W. 683.

20 Feltham v. Sharp, 99 Ga. 260; 25 S. E. 619.

21 Emerson v. Kneezell (Tex. Civ. App.). 62 S. W. 551.

22 Connor v. Buhl. 115 Mich. 534; 73 N. W. 821.

23 Ft Wayne Electric Light Co. v.

Miller. 131 Ind. 499: 14 L. R. A. 804; 30 N. E. 23.

24 Keys v. Weaver. 95 Ta. 13; 63 N. W. 357.

25 First National Bank v. Park, 117 la. 552: 91 N. W. 826.

26 p. Dougherty Co. v. Gring. 89 Md. 535: 43 Atl. 912.

27 Ashmore v. Cox (1899), 1 Q. E. 436.

28 Bates v. Harte, 124 Ala. 427; 82 Am. St. Rep. 186; 26 So. 898.

29 Henderson Warehouse Co. v. Brand, 105 Ga. 217; 31 S. E. 551.

30 Peterson v. Mayer, 46 Minn. 468; 13 L. R. A. 72; 49 N. W. 245.

31Chisholm v. Halifax, 29 N. S. 402.

32 Wheeler v. State, 109 Ala. 56; 19 So. 993.

33 Schmidt v. North Yakima, 12 Wash. 121; 40 Pac. 790.

34 Schmidt v. North Yakima, 12 Wash. 121; 40 Pac. 790.

35 Smith v. Brady, 13 N. Y. 173; 72 Am. Dec. 442.

36 Knottsville Roller Mill Co.v. Mattingly (Ky.), 35 S. W. 1114.