If the building is materially different from that contracted for, no substantial performance can be said to exist.1 In building or construction contracts a deviation from the terms of the contract which can not be corrected without a partial2 or total3 reconstruction of the building or work, can not be corrected by a mere recoupment of damages,4 and is not substantial performance.5 Thus a contract to build a building fifty feet by one hundred and 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.6 Where the girders are not of the length contracted for and a wooden partition is omitted there is no substantial performance.7 If the joists are farther apart than the contract requires, no recovery can be had on the contract, though the house is strong enough.8 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, the contract is not performed substantially.9 A contract to build a monument is not substantially performed if of different dimensions from those specified in the contract.10 A contract for constructing a burial vault, the ends of which are to be of solid pieces of stone, is not 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.11 A contract to construct a building is not performed substantially as a matter of law, if the wall is cracked and if parts of the building are out of plumb.12 A contract for building a retaining wall is not substantially performed where it bulges nine inches.13 A contract to place dwelling-houses upon certain realty, is not performed substantially if the buildings which are placed thereon are not fit for use as dwellings.14 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.15 A contract to construct an elevator with a capacity of four thousand bushels per hour, is not performed substantially by the construction of an elevator with a capacity of thirty-three hundred bushels per hour.16 A contract to make screens of bronze wire fitted with certain specified checks, is not performed substantially if the checks which are used are not of such specified kind and if the wire which is used is steel wire bronzed, which is worth a fifth as much as bronze wire.17 A contract to paint a house so as to do a first-class job, is not substantially performed if the old paint is not removed where such removal is necessary.18 A contract for furnishing drain pipes and sewer pipes of iron and of certain specified dimensions, is not performed substantially if drain pipes of earthenware are used of smaller dimensions, although it is shown that the pipes actually used will render as satisfactory service as those contracted for.19 A contract for the construction of a bridge is not performed substantially if the steel legs on which it is supported are from seven to eleven feet short and the concrete bases are built up higher to support the bridge, and if the bridge is crooked and a foot and a half higher at one end than at the other, instead of being straight.20 If a contract to drill a well is entire, no recovery can be had thereon unless it is performed at least substantially.21 A contract to sink a well to such a depth that water would be reached, is not performed substantially by sinking a shaft which is abandoned before water is reached.22

5 Evans v. Howell, 211 III. 85, 71 N. E. 854.

6 See ch. LXXXIV.

1 Kentucky. Nance v. Patterson Building Co., 140 Ky. 564, 140 Am. St. Rep. 308, 131 S. W. 484.

Minnesota. Uldrickson v. Samdahl, 92 Minn. 207, 100 N. W. 5.

North Carolina. Braddy v. Elliott, 146 N. Car. 578, 16 L. R. A. (N.S.) 1121, 60 S. E. 507.

North Dakota. Braseth v. Bank (X. D.), 98 N. W. 79.

Wisconsin. Foeller v. Heintz, 137 Wis. 160, 24 L. R. A. (N.S.) 327, 118 N. W. 543 (obiter).

See also, Mehurin v. Stone, 37 O. S. 40.

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

See also, Foeller v. Heintz, 137 Wis. 160, 24 L. R. A. (N.S.) 327, 118 N. W. 543.

3 Swain v. Seamens, 76 U. S. (0 Wall.) 254, 10 L. ed. 554; Tennant Land Co. v. Nordeman, 148 Ky. 361, 146 S. W. 756.

4 Elliott v. Caldwell, 43 Minn. 357, 0 L. R. A. 52, 45 N. W. 845.

5 Perry v. Quackenbush, 105 Cal. 200, 38 Pac. 740; Eaton v. Gladwell, 121 Mich. 444, 80 N. W. 202; Anderson v. Pringle, 70 Minn. 433, 82 N. W. 682; Spence v. Ham, 163 N. Y. 220, 51 L. R. A. 238, 57 N. E. 412.

6 Swain v. Seamens, 76 U. S. (9 Wall.) 254, 10 L. ed. 554.

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

8 Smith v. Brady, 17 N. Y. 173, 72 Am. Dec. 442.

9 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.

10 Cutler v. Dix, 67 Vt. 347, 31 Atl. 780.

11 Mehurin v. Stone, 37 O. S. 49.

12 Hoglund v. Sortedahl, 101 Minn. 859, 112 N. W. 406.

13 Lynes v. Hall, 60 Minn. 532, 63 N. 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.

14 Braddy v. Elliott, 146 N. Car. 578. 16 L. R. A. (N.S.) 1121, 60 S. E. 507.

15 Sherman v. Connor, 88 Tex. 35, 20 S. W. 1053.

16 Steel Storage & Elevator Const. Co. v. Stock, 225 N. Y. 173, 121 N. E. 786.

17 Higgins Mfg. Co. v. Pearson, 146 Ala. 528, 40 So. 570.

18 Manthey v. Stock, 133 Wis. 107, 113 N. W. 443.