1851. MCKINNEY V. SPRINGER. Nov. Term, the same quantity of work, if he had completed his contract. The jury would understand, from these instructions, in applying them to the evidence given, that the "reasonable value" they were to put upon the plaintiff's labor and materials, was, not their reasonable value to the defendant, under the particular circumstances of the case, but their reasonable value, to be estimated according to the customary prices charged by other workmen. By the rule thus given, if a man contracts with another to build a house for a certain price, and leaves the house only half finished, he would be entitled to recover half the stipulated price, when that did not exceed the customary rates, if the owner took possession of the unfinished. building, which, in most cases, he could not well avoid doing. It would give the builder a very unfair advantage, for he could stop when he pleased, and compel the owner of the property to pay him a full price for what work he had done, whatever losses might have been sustained by his failure to complete his undertaking. In such cases, the owner of the property contracts to pay a gross sum for a house when complete, not a ratable proportion of that sum for so much of the building as should be erected; and if, through the default of the builder, he obtains only an unfinished house, the proper mode of ascertaining the real benefit received by him, from such part performance, is to estimate the whole work at the price the parties had agreed upon, and deduct from that the amount necessary to complete the portions of the work left unfinished. If there is any loss occasioned by such unfinished work costing more in proportion than the whole work was undertaken for, such loss is the consequence of the default of the party who originally contracted to do it, and upon him it ought to fall. There may be cases in which the builder would not be entitled to recover so much as the proportion which the work done would bear to the cost of the whole, but he ought not to recover more than that proportion. It seems that the defendant may, in an action of this kind, reduce the amount to be recovered, by showing that 1851. MCKINNEY he has sustained special damages by reason of the non- Nov. Term, performance of the contract by the plaintiff, or, he may waive the recoupment of such damages, and bring a cross action to recover them. Epperly v. Bailey, at this term. In the present case, the plaintiff was to be compensated for building the house in question, by receiving the conveyance of a lot of ground; but this fact will not occasion any difficulty in the application of the proper measure of damages. If the plaintiff had finished his contract and brought an action on the special agreement, the measure of damages would have been the value of the lot he was to have received, not the reasonable or customary value of the work done. Ellison v. Dove, 8 Blackf. 571.-Lucas v. Heaton, Ind. R. 184 (1). So, in this suit, the value of the lot must be considered as representing the compensation the plaintiff was to receive for the whole work, and from it must be deducted the amount necessary to make up the plaintiff's deficiencies in the completion of his contract. The instruction relative to the effect of the alterations in the plan of the building, made by the parties during the progress of the work, is also erroneous. When a building is in process of construction, and additions or alterations are made, the original contract, unless it be so entirely abandoned that it is impossible to trace it and say to what part of the work it shall be applied, is held still to exist, and to be binding on the parties as far as it can be followed. The additions, or alterations, if the expense of the work is thereby increased, may be the subjects of a new contract, either express or implied, but they do not affect the original contract, which still remains in force. Chit. on Con. 492.-Lovelock v. King, 1 Moo. & Rob. 60.-Wright v. Wright, 1 Litt. 181.-Mc Cormick v. Connelly, 2 Bay, 401. In this case, the evidence shows that the alterations were not of such a character as materially to interfere with the specifications of the original contract. The instruction to the jury, that they might give interest for a vexatious delay of payment, is in conformity V. SPRINGER. Nov. Term, with a statutory provision, and is not objectionable. R. 1851. RUCKER V. BEATY. S. c. 31, s. 28, p. 581. The last instruction to be noticed is that having reference to the statute of limitations. So far as it may be understood to mean that the statute would not begin to run until after the plaintiff had ceased to work upon the house in question, this instruction is correct; a contract to build a house, being in law an entire contract to do the thing stipulated, and not a contract for each separate item of work or materials done or furnished in the progress of the undertaking. So far as it favors the idea that the plaintiff is entitled to recover for those items of work and materials, what he had proved them to have been worth according to the customary prices paid at the time for similar work and materials, it is, like the other instructions before noticed, erroneous (2). Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. A. Davison, for the appellant. J. Robinson and J. S. Scobey, for the appellee. (1) 1 Carter's Ind. R. 264. (2) The doctrine stated in the present case, in relation to the right to recover damages upon the part performance of a special contract, is in conflict with that asserted in Swift v. Williams, 2 Carter's Ind. R. 365, and Hoagland v. Moore, 2 Blackf. 167; and those cases may be deemed, as to that doctrine, to be overruled. See, also, Cranmer v. Graham, 1 Blackf. 406, where the doctrine stated in the two last-named cases seems also to have been held. RUCKER V. BEATY. An opinion expressed by a witness, inconsistent with a fact testified to by him, cannot be given in evidence to impeach his credit. In an examination to impeach the credit of a witness by proof of his general bad character, the inquiry must be limited to his character at the time of the examination. ERROR to the Rush Circuit Court. Nov. Term, 1851. RUCKER V. BEATY. PERKINS, J.-Josiah Gordon sued James S. Rucker, in trespass, for criminal conversation with said Gordon's wife. Rucker pleaded the general issue. The cause was tried by a jury, and Gordon obtained a verdict and judg- Wednesday, ment for 500 dollars. Gordon died, and Beaty, his admin- November 26. istrator, was made a party to the judgment, and is the defendant in this Court. A bill of exceptions states that, on the trial, "one William Moore, having been called by the plaintiff and sworn as a witness, on cross examination, stated, on the question of the defendant, that the plaintiff had not said to him that he brought this suit to prevent the defendant from suing him. Whereupon the defendant asked the witness if he had not himself told one John Ross, in his shop at Burlington, in said county, last winter, that that was the reason why the plaintiff sued; to which the witness replied that he had no recollection of having so told Ross. Thereupon, said Ross, a competent witness, was called and sworn, and asked if Moore did not tell him as above, in his shop last winter;" and, objections being made, the the Court directed the witness not to answer, &c. We think the Court committed no error in this. It will be observed that the witness was not asked whether he did not tell Ross that the plaintiff had told him the reason he sued was to prevent the defendant suing him, but whether he had not himself expressed the opinion to Ross that such was the reason of the suit. Now, whether he had expressed such an opinion to Ross or not, or whether he, even then, privately entertained such an opinion or not, had nothing to do with the facts of the case, and was irrelevant and immaterial. The bill of exceptions further states that "James Havens, a competent witness, was called by the defendant, for the purpose of proving the general character of the said witness, Moore; and being asked if he was acquainted with the general character of said witness, at that time, answered that he did not know that he was; he was then asked if he was acquainted with that character some five Nov. Term, years ago. The plaintiff objected to this question being 1851. EPPERLY V. BAILEY. answered, and the Court sustained the objection, the defendant having already adduced other evidence tending to prove that the character of said Moore was, at the time of the trial, bad." We do not see that the defendant was injured by this ruling of the Court. The general rule, in cases like this, is, that testimony as to character must relate to the time at which the witness, sought to be impeached, is examined; and if the defendant had already shown that the character of Moore was then bad, he had accomplished all that was necessary. If he had not been able to establish that it was then bad, he had no right to go back five years for the sake of attacking it. If he had shown it to be bad at the time of the trial, we do not see that there was any objection to his also showing it to have been always bad, except the time that would have been consumed in the examination. That time the Court was not bound to waste. The plaintiff in error objects generally to the instructions that were given to the jury, and to the refusal to give others that were asked, but specifies no particulars. We think there is no error in this part of the case. Per Curiam.--The judgment is affirmed with costs. EPPERLY V. Bailey. Where a party has sold and delivered chattels, or performed labor for another, under a special contract which he has failed to complete, and such part performance has been a benefit to the party receiving it, which benefit he has retained after the expiration of the time for completing the contract, an action on the quantum valebat or quantum meruit may be supported for the chattels delivered or the work done. In such a case, the defendant may prove, by way of recoupment, whatever |