Opinion by

The plaintiff agreed to do the carpenter work necessary in the erection of a number of houses for a fixed price, and to accept in part payment thereof a conveyance of two of the houses, the balance to be paid in money. Some payments were made as the work progressed. This suit was brought to recover in money the whole of the price agreed upon, less the payments made during the progress of the work. The plaintiff alleged that the houses were not completed and conveyed, and that the whole of the money consideration was not paid. The dispute as to the amount of the payments was referred to the jury, and no question relating to them is before us. The learned judge, being of opinion that the plaintiff -had not shown an adequate reason for refusing to take the houses as agreed, instructed the jury that there could be no recovery except for the balance due in money under the terms of the agreement.

It was not disputed that a conveyance of the houses was tendered to the plaintiff. Pie had some months before taken possession of one of them, sold it, received a part of the purchase money and put the vendee in possession, and he had exercised acts of ownership over the other house. There was no testimony to show that the houses were not substantially completed ; the defects were in trivial matters and could have been *45remedied at a trifling cost. When the defendant offered to convey the houses he also offered to pay the balance of the money which appeared by a written statement signed by the plaintiff to be due, less an amount which he claimed for lumber sold to the plaintiff. The plaintiff alleged that there was an error in the statement which he' had rendered, and that the lumber had been given to him by the defendant. Practically the dispute was about these two matters. A refusal fo pay the disputed balance was not such a breach of the contract by the defendant as to justify the plaintiff in refusing to take the houses and to entitle him to a recovery of the whole consideration in money. He had misled the defendant by the statement which he had rendered, and the counterclaim for the price of the lumber was made in good faith. As the case was treated at the trial and submitted to the jury the verdict does not estop the plaintiff from claiming a conveyance of the houses, and this under the testimony is all he is entitled to.

The judgment is affirmed.