Under the plea of non est factum, in an action of covenant, neither a mutual abandonment of the contract between the parties, nor the non-performance by the plaintiff of conditions precedent, can be given in evidence.

In an action of covenant on a contract by which the defendant agreed to build a house for the plaintiff, to be paid for by the conveyance of a house and lot by the plaintiff to the defendant, the breach assigned and proved being the neglect to build the house, the differ*15ence in value between the house and lot to be conveyed, and the house to be built, is, as against the defendant, a proper measure of damages.

No statement of special damages was necessary to entitle the plaintiff to give evidence of such difference in value.

A party cannot object that the measure of damages fixed at the trial was more favorable to him than the pleadings and evidence would justify.

(S. C., 10 N. Y. 371.)