201 Mass. 74 | Mass. | 1909
The only question in this case is one of pleading. • The first count is upon an account annexed, the first item of which is, “ House remodelled and redecorated as agreed, $4,728.25.” Then follow thirty-nine items for additional labor and materials in connection with the work referred to in the contract. The second count is upon a special contract in writing, a copy of which is annexed,
The ruling shows that the judge made deductions from the contract price for deviations from the contract, and we infer from the record, although perhaps this is not certain, that the amount of these deductions was $148.50. He found that there had been a substantial performance of the contract, and that the defendant had accepted the work and materials furnished by the plaintiffs as a substantial performance of their contract, with a full knowledge that the contract had not been strictly performed.
These findings and rulings and refusals to rule, in a case where there was such a failure to perform a building contract as to call for a substantial reduction from the contract price under the rule stated in Hayward v. Leonard, 7 Pick. 181, which permits a recovery when there has been an attempt in good faith to per
We think it has generally been assumed that, in such a case, there can be no recovery under a count averring performance of the special contract by the plaintiff and a breach of it by the defendant. Hayward v. Leonard, ubi supra. Snow v. Ware, 13 Met. 42. Gillis v. Cobe, 177 Mass. 584. Norwood v. Lathrop, 178 Mass. 208. Burke v. Coyne, 188 Mass. 401, 404. On principle there cannot be a recovery upon an averment of performance in such a case, because the proof shows a variance.
The acceptance of the work as a substantial performance of the contract, notwithstanding known omissions to do that which was required, is a waiver, and, upon an averment of performance, a. plaintiff cannot recover by proof of a waiver. Colt v. Miller, 10 Cush. 49. Palmer v. Sawyer, 114 Mass. 1. Freeland v. Ritz, 154 Mass. 257.
The ruling as to recovery under the second count was erroneous. Whether the words “ as agreed ” in the statement of the first item in the first count would prevent the maintenance of the action on that item it is not necessary to consider, for the finding was on the special contract, and only upon items two to forty in the first count.
As the defendant relied upon these questions of pleading at the trial, and, so far as appears, might have tried her case differently if she had not relied upon them, she is entitled to a new trial. "
' Exceptions sustained.
This was a contract in writing, with specifications, for repairing and remodelling the defendant’s house on the corner of Valentine Street and Lenox Street in West Newton.
Raymond, J.
The defendant alleged exceptions.