Gross v. Creyts

130 Mich. 672 | Mich. | 1902

Montgomery, J.

The plaintiff recovered the value of work and materials furnished in plumbing the house of defendant. Defendant brings error.

The work was performed under a written contract. Defendant contended that the worki had not been performed in accordance with the terms of the contract, and denies any obligation to pay for the same, on any terms. The jury found, in answer to special questions, that plaintiff did not complete the plumbing according to contract; but as the plaintiff’s claim was for $156, and a jury awarded a verdict for $150.46, the deficiencies were manifestly not relatively very great.

The circuit judge charged the jury that, if the contract had not been complied with, the plaintiff might still recover under the quantum meruit count. Defendant’s counsel complain of this instruction, and contend that the defendant was not bound to accept the plaintiff’s work unless it conformed to the contract; citing Martus v. Houck, 39 Mich. 431 (33 Am. Rep. 409), Sheldon v. Leahy, 111 Mich. 29 (69 N. W. 76), and other cases. These cases are clearly distinguishable. If it be true that defendant was not bound to accept plaintiff’s work, the answer is that he did accept it. A portion of the contract was for bathtub, washbowl, etc. Instead of refusing to accept them, defendant, in his repairs and improvements, made use of them. The rule in Allen v. McKibbin, 5 Mich. 449, applies.

Judgment affirmed.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.