what the well, as constructed by the plaintiffs was worth. Nor was there any evidence as to what it would cost to complete the well by drilling to the depth stipulated in the contract. The only evidence adduced by the plaintiffs was as to the value of the material utilized and services performed in drilling. Hence the following facts stand undisputed: That the plaintiffs agreed to furnish to the defendant a flowing well, provided such well could be obtained by drilling to a depth of 1,450 feet; that 1f a flowing well could not be obtained by going to that depth then the plaintiff should furnish to the defendant a pump well that would furnish water suitable for stock and domestic purposes in reasonable quantities; that the plaintiffs abandoned the work when they had drilled to a depth of 1,315 feet, without having produced a well at all; that such abandonment was in no manner acquiesced in by the defendant, but took place over his protest; that the plaintiffs have at no time completed, attempted to complete, or even offered to complete, the work in accordance with the contract, as that contract was determined to be by the former decision of this court; that the plaintiffs have failed to show that the well, as constructed by them, added to the value of defendant’s land, or what, if any, value the well had as the same was constructed by them. In these circumstances can it be said*that the plaintiffs have brought themselves within the rule enunciated in Horton v. Emerson, supra, so as to permit them to recover on quantum meruit? After a careful consideration of this question we have arrived at the conclusion that it must be answered in the negative.
It will be noted that in Horton v. Emerson, supra, this court quoted with approval the rule laid down by Sutherland in his work on Damages, which reads, in part, as follows:
“The contractor must have intended in good faith to fulfill the terms of the contract; its spirit must be faithfully observed, though the very letter of it fail, A voluntary abandonment or a wilful departure from its stipulations is not allowed.” 3 Sutherland on Damages (3d ed.) § 711; 30 N. D. 270, 152 N. W. 529.
Among the authorities cited in the last edition of Sutherland (see 3 Sutherland on Damages 4th ed. § 711, p. 2677) in support of the proposition thus stated in Bowen v. Kimbell, 203 Mass. 364, 89 N. E. 542, 133 Am. St. Rep. 302. In the decision in that case the Supreme Court of Massachusetts said:
“It has always been held that he (the contractor) cannot recover upon
