"One party to a contract cannot alter its terms without the assent of the other. The minds of the parties must meet as to the proposed modification." 13 C. J. 591.
"In an action for alleged breach of contract it is error to instruct that if the plaintiff suggested modification and the defendant failed to answer him, he agreed thereto and the contract as modified was the true contract, since one need not answer and cannot be bound in the absence of actual consent." "One of joint parties cannot extend the time for performance without the consent of his co-party." 162 Pac. 845; Northwestern F. & M. Ins. Co. v. Connecticut F. Ins. Co. 105 Minn. 117 N. W. E25; Molostowsky v. Grauer, 113 N. Y. Supp. 679; Note 7, 13 C. J. 591; U. S. Central C. v. Good, 120 Fed. 793; Ehrman v. Rosenthal, 49 Pac. 460; Tutt v. Davis, 110 Pac. 69o; State Bk. v. Heinse, 160 N. W. 9033; Blake v. Osmundson, 159 N. W. 766; Pardoe v. Jones, 143 N. W. 405; White Pine Lmb. Co. v. Mfg. Co. 158 N. W. 124; note 37, 13 C. J. 601.
"A new trial will not be granted merely because the losing party or his attorney did not exercise prudence or erred in judgment and can probably make a better case or defense on another trial." 29 Cyc. 852; Fincher v. Malcolmson, Cal. 38, 30 Pac. 835; Holderman v. Jones, 52 Kan. 743; 34 Pac. 352.
"Suprise at the admission of proper evidence is generally not ground for a new trial. * * * Surprise at the exclusion of inadmissible evidence is seldom ground for a new trial and this rule applies to the exclusion of testimony of an incompetent witness and to the rejection of documentary evidence or secondary evidence for the introduction of which no proper foundation has been laid." 29 Cyc. 862, and cases cited in notes 28 and 30.
"The measure of damage occasioned by failure to perform a building contract in the case of substantial performance is the difference between the value of the work done or the building erected and the value of that which was contracted for." 9 C. J. 810.
"The fundamental idea running through all of the case law is that an owner is entitled to the performance of a contract by the contractor and where the contract is breached is entitled to recover damages that will be a just equivalent for the breach." Waller v. Huggins, 148 S. W. 148.
"The question ordinarily is how much less is the building fairly worth than it would have been if the contract had been performed.” White v. McLaren, 151 Mass. 553; Gibson v. Harlan, 13 Tenn. 440.
