The plaintiff’s complaint states that he made plans and specifications for thrеe houses, and procured bids for the same, at the request and by the. direction of the defendant, at an agreed compensation of two and a half per cent, upon the estimated cost of the buildings. The plaintiff then alleges that that percеntage amounts to $250.
This complaint sets out a special contract entered into at the request of the defendant and performed by the plaintiff. Under our presеnt practice, which is free from technicalities, it is mot defective by reason of the omissions stated in the demurrer.
After the demurrer was overruled it appears that the defendant answered over, alleging by way of defence that a contract had been entered into by the plaintiff and defendant materially different from that allegеd in the complaint. Subsequently the defendant permitted a judgment by default to go against him,- аnd moved for a hearing in damages. Upon such hearing in damages the defendant, for thе purpose of reducing the damages, offered evidence to prove that the contract stated in the complaint had never been made, but that an entirely different contract existed between
“It is generally held that on the assessment of damages, after a default, or on an equivalent state of the record, evidence denying thе cause of action, or tending to show that no right of action exists, is inadmissible in mitigation оf damages. * * * When an action is brought on a contract set out in the declaration, and there is a default, on the assessment of damages no evidence which goеs to deny the. existence of the contract or tends to avoid it is competent; the default admits it as set forth, and concludes the defendant from denying it.” 1 Sutherland on Damаges, 777.
In this state, in some actions of tort, notably in actions in which negligence is of the gist of the action, evidence in mitigation of damages, which evidence also tends to show the non-existence of some material element of the cause of аction, is permitted. But this rule has never been extended to actions upon express contracts set forth in the complaint and we do not think it applicable to thе case at bar.
Upon the construction of the contract stated in the complaint which is most favorable to the defendant, the only question left open aftеr the default was the estimated cost of the buildings. This estimated cost we understand in this casе to mean the reasonable cost of buildings erected in' accordancе with the plans and specifications referred to and not necessarily the amount of some actual estimate made by a builder, nor an estimate agreed upon by the parties, nor yet an estimate or bid accepted by the defendant. The court below heard evidence as to such estimated cost of buildings to be ereсted in accordance with the plans and specifications, and upon this issue thе defendant was fully heard. We need not consider whether the contract, if the plaintiff had insisted on such construction, should not have been construed as fixing‘by agreement of the parties such estimated value, for such sum would be larger than the sum fixed by the court, аnd as all parties upon the trial proceeded upon the construction most favorable to the defendant, there is nothing in this particular of which the defendant сan complain.
There is no error and a new trial is not granted.
In this opinion the other judges concurred.