CONTRACTS ? DAMAGES ? INSTRUCTIONS ? EVIDENCE ? APPEAL AND ERROR. 1. Damages ? Instruction as to damages not prejudicial. In homeowners action against contractor to recover for defects in materials and poor workmanship used in home, trial court instruction regarding method of determining damages was not erroneous as allowing compensation for damages not alleged or prayed for in complaint, and even if instructions was too broad, it was not prejudicial when construed in light of other instructions. 2. Contracts ? Jury question as to waiver of defects. The evidence presented a jury question as to whether owners knew of defect when they moved into the dwelling and paid balance of contract price, and whether they had waived the defects. 3. Contracts ? Question of waiver is one of fact. Waiver is a question of fact depending upon the circumstances of each case that it to be referred to the jury, and mere payment and - Page 2 moving into home does not impart knowledge of defects to owner or constitute waiver of defects. 4. Contracts ? Subsequent offer to remedy breach. Where there has been a breach of contract, right of action accrues and cannot be defeated by a subsequent offer to perform where performance appears unlikely. 5. Contracts ? No duty to accept offer to remedy breach. Where contractor failed to build home in workmanlike manner and with good materials, cause of action for breach of contract arose, and owners were not compelled to accept any further performance on the part of contractor when there was no assurance that such would measure up to the agreed upon standard. 6. Contracts ? Jury questions presented as to existence of defects. In homeowners action to recover from contractor for defects in workmanship and materials used in completion of home, evidence presented jury questions as to existence of defects and amount necessary to repair them. 7. Evidence ? Expert witnesses. Fact that expert witness inspected home having alleged defects nearly a year after construction merely went to the weight of his testimony in owners action to recover from contractor, and not to its competence. 8. Evidence ? Experienced witness competent to testify. Owners witness, having long experience in the building trades, was competent to testify as to the existence of defects and method and cost of repairing them. 9. Contracts ? Jury question as to workmanlike manner. Evidence presented a jury question of whether the work was done in a workmanlike manner or with good materials. 10. Appeal and Error ? Counsels mistake not prejudicial. Mistake of owners counsel in attributing testimony of one of their witnesses to another, both of whom were qualified in the building trades, was not prejudicial.