The opinion
IRWIN, Justice
(dissenting).
In my opinion, the controlling issue involved in this action is the type or gauge ■of metal of the building that plaintiff in •error, Dean Jones, contracted to build for defendant in error, Lowell Featherston. Jones contends that he contracted to build a “wonder barn” with 26 inch gauge metal. Featherston contends the contract required the building to be constructed with 22 inch gauge metal. The building was constructed with 26 inch gauge metal.
Although the evidence is in conflict with reference to the gauge of the metal, according to the evidence adduced by Featherston, the building was to be constructed with 22 inch gauge metal and not with 26 inch gauge metal. There inheres in the verdict of the jury and the judgment rendered thereon that the parties agreed that the building would be constructed with 22 inch gauge metal.
The majority holds that if the gauge of the metal was not as contracted for, the measure of damages is that there is to be deducted from the contract price the difference in value between the contract price and the market value of the building as constructed.
In my opinion, this rule is not applicable in the case at bar. Featherston is not seeking damages from Jones for failure to perform, the contract. On the contrary, Jones is seeking recovery from Featherston for performance of the contract and in my opinion, before he is entitled to recover he must at least show a substantial compliance with the contract. See 12 Am.Jur., Contracts, Sec. 328, wherein it is stated, “In regards to conditions precedent it is elementary rule of law that there must be at least a substantial performance thereof in order to authorize a recovery as for performance of the contract.”
The record is barren of any evidence whatsoever which would indicate or even imply that a building constructed with 26 inch gauge metal substantially complies with a contract providing for construction with 22 inch gauge metal. The majority opinion does not require substantial performance, but holds that the measure of damages is the difference between the contract price and the market value of the building as constructed.
*22 Since Jones failed to show a substantial compliance with the contract and Feather-ston disclaims any interest in the building, (the trial court found that Featherston disclaimed any interest or claim to the building and ordered and decreed that Jones be authorized and permitted to remove the building) Featherston should not be required to pay the market value of a building which he did not contract to have constructed.
I therefore dissent to the opinion promulgated by a majority of my associates.
Rehearing denied.
DAVISON and IRWIN, JJ., dissent.