the owner would be entitled as damages for the contractor's failure to perform in accordance with the strict terms of the contract." As to the principal controversy Jackson Brothers were plaintiffs. They were not entitled to recover the full contract price, without deductions, there being only a substantial performance by them. To allow full recovery without deductions for defects is to award compensation for something they have not done. In 6 R. C. L. p. 969, it is stated: "The principle underlying cases of this general character is that the party in default can never gain by his default, and the other party can never be permitted to lose by it. Hence where a building contractor has substantially performed his contract, he ordinarily may recover the contract price, less a deduction to reimburse or compensate the owner for the contractor's failure fully to complete his contract. In permitting recovery upon an entire building contract but substantially performed, the aim should be to give the proprietor in substance, as near as practicable, the thing contracted for, not merely in value, but in form and substance. The doctrine of substantial performance necessarily includes compensation for all defects which are not so slight and insignificant as to be safely overlooked on the principle of 'de minimis non curat lex. Unsubstantial defects may be cured, but at the expense of the contractor, not of the owner. The contractor cannot recover the entire contract price when defects or omissions appear, for he must show, not only that they were unsubstantial and unintentional, but also the amount needed to make them good, so that it can be deducted from the contract price and a recovery had for the balance only." It being made to appear from the pleadings and the proof that there was not a full compliance with the plans and specifications, Jackson Brothers could not recover at all without invoking the equitable doctrine of substantial performance. to remedy the defects and omissions. Spence v. Ham, 163 N. Y. 220, 51 L.R.A. 238, 57 N. E. 412; Roberts v. Sinnott, 55 Mont. 369, 177 Pac. 252; Nesbit v. Braker, 104 App. Div. 393, 93 N. Y. Supp. 857. It is evident the trial court tried the case upon a wrong theory as to the rights of Jackson Brothers and Atkinson. For this reason it is equitable to reverse and remand this phase of the case. In the event of another trial it might be well for the trial court to instruct the jury as to the meaning of "substantial performance." To constitute substantial compliance the contractor must have in good faith intended to comply with the contract, and shall have substantially done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, Contractsand are not so es- what is subsential that the ob- formance. ject of the parties in buildings stantial per making the contract and its purpose cannot, without difficulty, be accomplished by remedying them. Such performance permits only such omissions or deviation from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and reconstructing. 6 R. C. L. 970; 4 Words & Phrases, 2d series, 751, 752; Elliott, Contr. § 1607; Harrop v. National Loan & Invest. Co. Tex. Civ. App. -, 204 S. W. 878; Rischard v. Miller, 182 Cal. 351, 188 Pac. 50; Snider v. Peters Home Bldg. Co. 139 Minn. 413, 167 N. W. 108; Louthan v. Carson, 63 Colo. 473, 168 Pac. 656. We do not deem it necessary to suggest rules to guide the trial court In In in the event, upon another trial, it should be found that there was not a substantial performance of the contract by Jackson Brothers. the event of such a finding, in the light of the circumstances as now reflected by the record, they would have a right to proceed on basis of -failure to per- quantum meruit for form-quantum recovery of the reasonable value of work performed and materials furnished. See 9 C. J. p. 818; Bradley Heating Co. v. Thomas M. Sayman Realty & Invest. Co. - Mo. -, 201 S. W. 866. meruit. Action-joinder and contractor. We think there was no error in failing to sustain the contention of plaintiff in error as -materialman to misjoinder of parties and causes of action. As the case is to be in part reversed, it becomes unnecessary to discuss this matter, except to say that we think the questions remaining to be litigated involve all the parties in such way as to make it appropriate and desirable to try them in the same action. The judgment of the court of civil appeals should be affirmed as to the recovery by Leeper-Curd Lumber Company against Jackson Brothers, and should also be affirmed in denying any of the parties a recovery against Mrs. Atkinson against the homestead property. In and denying a foreclosure of lien other respects the judgment of the court of civil appeals and of the trial court should be reversed and ommend. the cause remanded, as we so rec Cureton, Ch. J., delivered the opinion of the court: Judgment of the Court of Civil Leeper-Curd Lumber Company v. Appeals affirmed as to recovery by Jackson Bros., and in denying any of the parties a recovery against Mrs. Atkinson or a foreclosure of lien against the homestead. In other respects the judgments of the Civil Appeals are reversed, and District Court and of the Court of cause is remanded, as recommended by the Commission of Appeals. We approve the holding of the Commission of Appeals on the questions discussed in its opinion. ANNOTATION. Measure of recovery by building contractor where contract is substantially, but not exactly, performed. failure strictly to perform. ATKIN- II. Where the defects are remediable Where the defects are remediable without taking down and reconstructing any substantial portion of the building, the amount of deduction from the contract price to which the owner is entitled is the expense of making the work conform to contract requirements. Arkansas.-Hollingsworth v. Leachville Special School Dist. (1923) 157 Ark. 430, 249 S. W. 24. Colorado. Zambakian v. Leson (1925) - Colo. 234 Pac. 1065. Connecticut. Valente v. Porto - (316 Ill. 598, 147 N. E. 453.) Damages, § 273 pollution of stream-elements. 1. Expense of feed for cattle confined in the barn because of pollution of the stream running through their pasture, the loss resulting from decrease in milk, and loss of time in driving animals to other water supply may be considered in awarding damages for wrongful pollution of a stream, if they are the proximate result of the wrong. [See note on this question beginning on page 1388.] Waters, § 126-deprivation of natural Municipal corporations, § 206 - right to commit nuisance. 3. A municipal corporation has no greater right to commit a nuisance than has any individual. [See 19 R. C. L. 1084 et seq.; 3 R. C. L. Supp. 994; 4 R. C. L. Supp. 1305; 5 R. C. L. Supp. 1057.] (316 Ill. 598, 147 N. E. 453.) Evidence, § 889 as to damages character. 7. While the law will not permit witnesses to speculate or conjecture as to possible or probable damages, the best evidence which the subject will admit of is receivable, even though it is nothing but the opinions of persons well informed upon the subject. Damages, § 273-pollution of water liability for lockjaw. 8. One polluting a stream flowing through a pasture is not liable for death of a horse pastured therein, from lockjaw, where the evidence to show that the pollution of the stream caused the lockjaw is purely speculative and conjectural. CERTIORARI to the Appellate Court, Second District, to review a judgment affirming a judgment of the Circuit Court for Henry County (Searle, J.) in favor of plaintiff in an action brought to recover damages, alleged to have been caused by the pollution of a natural watercourse running through his farm. Reversed. The facts are stated in the opinion of the court. Stone for plaintiff in certiorari. Messrs. Sturtz & Ewan for defend ant in certiorari. and extending south for one half of a mile. Johnston and his family resided on the north 32 acres. The south 55 acres of the farm consisted De Young, J., delivered the opin- of pasture land, on which his live ion of the court: William Johnston instituted suit in the circuit court of Henry county against the city of Galva to recover damages caused by the pollution of a natural watercourse which ran across his farm. A jury trial resulted in a verdict for the plaintiff for $4,000. The court required a remittitur of $1,500, and judgment was rendered for $2,500. Upon appeal to the appellate court for the second district, the judgment of the circuit court was affirmed. The record is here by writ of certiorari granted upon the petition of the city. For many years William Johnston owned 112 acres of farm land, of which the north 32 acres were situated within the limits and upon the southern boundary of the city of Galva. The remaining 80 acres constituted a rectangular tract, one quarter of a mile in width from east to west, adjoining the north 32 acres stock grazed. Across this pasture, from a point on the east line of the farm about one eighth of a mile north of its southern boundary, a creek ran in a northwesterly direction. About the year 1912 the city of Galva, a municipal corporation with a population of approximately thirty-five hundred, constructed a sewer system. A part of this system conveyed the sewage from the business houses and dwellings of about five hundred people in the south and east portions of the city, to a settling tank and filtering beds located south of the corporate limits. After subjection to whatever purification process the tank and beds afforded, the sewage passed through an open ditch, then through certain tile drains and a concrete abutment, and finally into the creek at the east line of Johnston's farm. Water, which was collected from an area of approximately eleven hun dred acres to the northeast, east, and southeast of Johnston's land, flowed through the creek prior to the construction of the sewer system. The extent of that flow was disputed. On behalf of Johnston, the defendant in error, it appeared that it was practically continuous throughout the year, while the city of Galva, the plaintiff in error, offered testimony that the creek was often dry. The defendant in error did not, however, rely upon the creek to supply water for his live stock, because he obtained water for that purpose from a well near his residence. The evidence concerning the quantity and character of the sewage which was emptied into the creek was also in conflict. From the testimony offered by the defendant in error it appeared that not all of the filtering beds were utilized, and that sewage left the disposal tank after partial purification; that at times it became so thick that it would hardly flow; that sludge was deposited on the bottom of the creek, though decreasing in quantity as the creek pursued its course westward; that the sewage was of a dirty, milky color, and had an odor which was more offensive in warm, dry weather than it was after freshets occurred, or when it was cold, and that the odor was noticeable for a considerable distance from the stream. Witnesses who had made a study of sanitation and disease-producing conditions, and had inspected the creek, testified that germs causing typhoid and scarlet fever and diphtheria were carried in the sewage, and that these germs might infect the milk if the cows were permitted to wade in the creek. Certain witnesses testified that there was no odor from the creek, while others stated that there was an odor which was perceptible for only a short distance. Witnesses for the plaintiff in error admitted that the creek was polluted to some extent, and that plans for a new sewage-treatment plant were under consideration by the city. The defendant in error claimed damages for the five-year period beginning in October, 1917. During that time he owned approximately twelve cattle, fifteen horses, and one hundred hogs, and he milked five to seven cows. His claim included, among others, the following items: (1) The cost of hay and grain fed to his milch cows from May to October of each year, while they were confined to the barn lot to prevent their coming into contact with the sewage, instead of grazing in the pasture, as they did before the sewer emptied into the creek-approximately $450 annually; (2) the loss of milk which resulted from keeping the cows out of the pasture-30 to 35 quarts a day, at 10 cents per quart, the market price, or $450 each year; (3) the cost of labor, $125, and the value of his own time, $375, each year, for driving the horses to and from water because they refused to drink out of the creek, aggregating $500 annually; and (4) the value of three horses which died of lockjaw in the year 1919, $750. Evidence in support of these items was admitted. The plaintiff in error insists that it was the duty of the defendant in error to mitigate the damages, if any, by building a fence on both sides of the creek, and that in any event the cost of such a fence would be the full measure of his damages. It appeared that it would cost $160 to build the fence, and that its maintenance would require the expenditure of $10 annually. Prior to the construction of the sewer system by the city and the deposit of its sewage in the creek, there was no necessity for such a fence. The defendant in error had enjoyed the unobstructed use of his pasture land and the flow of water in the creek in its natural state, undefiled by sewage. The construction of the sewer system by the plaintiff in error did not devest him of these rights. He could not be deprived of them except by due process of law. Tetherington v. Donk Bros. Coal & Waters deprivation of natural flow of stream-due process. |