A minor and immaterial variance may exist, which it may be impossible to remedy so as to make the building conform literally to the terms of the contract, without reconstruction, and yet it may be proper to hold that the contract is performed substantially.1 A slight deviation from the plans caused by a mistake in measurement, not discovered by either party or the architect until the contract is completed, and not affecting the external appearance of the house or its usefulness, does not prevent the performance from being substantial.2 Defects in hanging doors and in the construction of the roof of a building which sagged as a result of such defect, has been held not to prevent substantial performance if it was practicable to rehang such doors and to remedy the defects in the roof by raising it and putting supports under it, without interfering with the ordinary use of the house to any appreciable extent.3 Under a contract to construct a gas plant of common brick picked for evenness of color, the contractor performs at least substantially if such wall is of as even a color as it is possible out of common brick.4 If A and B have entered into a contract for the construction of a party wall between their respective tracts of land, and A lets such contract to X under plans and specifications which do not require the wall to be built of mortar made of hydraulic cement which was required by the original contract between A and B, A may recover under the original contract if B has known of such specifications and has not objected to such construction.5 This, however, is probably to be explained fully as much on the theory of waiver of strict performance,6 as on the theory of substantial performance.

32 Lavanway v. Cannon, 37 Wash. 593, 70 Pac. 1117.

33 Morehouse v. Bradley, 80 Conn. 611, 60 Atl. 937.

34 See ch. LXXXIV.

1 Pinches v. Swedish Evangelical Lutheran Church, 56 Conn. 183, 10 Atl. 264.

Substantial performance may exist "where the failure is merely inconsiderable incompleteness and the expense of completion is easy of ascertainment." Manitowoc Steam Boiler Works v. Manitowoc Glue Co., 120 Wis. 1 97 N. W. 615 (obiter).

2 Oberlies v. Bullinger, 132 N. Y. 598, 30 N. E. 999.

3 Woodward v. Fuller, 80 N. Y. 312. 4 Birdsall v. Perry Gas Works, 181

Ia. 1268, 161 N. W. 304.