46 Minn. 538 | Minn. | 1891
Action by an assignee under the insolvency laws of the state, to recover for work-done and materials furnished by his-assignors in drilling and sinking a well upon defendant’s farm. The-complaint set forth an agreed- price, and also the reasonable va’ue of the services and materials; but the trial proceeded upon the theory that there was a contract between the parties, which had been substantially performed at a time when the defendant forbade the assignors, and, later on, their assignee, to proceed and fully complete-the undertaking. The court below, when charging the jury, characterized the understanding or agreement entered into by the parties, in reference to the sinking of a well as a “loose bargain;” and we may add that the case itself seems to have been rather loosely tried by their counsel. It is claimed by the defendant (appellant) that, there was an entire absence of evidence on which the verdict in plaintiff’s favor can be sustained; and his claim is undoubtedly correct,, unless there was testimony adduced upon the trial which would justify the jury in finding that the contract with respect to the drilling, and sinking of the well had been substantially complied with, when the plaintiff’s assignors were prohibited doing anything further. T.he-plaintiff’s testimony was mostly directed towards establishing this-substantial compliance, while the defendant, in addition to contro
To entitle a party to recover the contract price in an action-brought for that purpose, he must have made a substantial performance of his agreement. Where the omissions and defects do-not go to the root of the subject-matter of the contract, but are easily susceptible of a remedy, so that an allowance out of the contract price will give the other'party full indemnity', and give-him-,, in effect, just what he bargained for, the contractor may recover the contract price, less the damages on account of such defects or omissions. This rule is applicable to contracts generally. And when the contractor shows a substantial performance, if the other party wishes to claim an allowance or deduction on account of these-slight defects and omissions, the burden is on him to allege and prove his damages. Leeds v. Little, 42 Minn. 414, (44 N. W. Rep. 309.) The defendant did not choose to make, any claim for an allowance for such defects and omissions, but relied on his ability to overcome the plaintiff’s contention that there had been a substantial performance, and, more especially, it appears from the testimony, upon his allegations that.the contractors had fraudulently drilled deeper than was necessary. The plaintiff’s testimony was to the effect that water in sufficient quantities was not reached until the well was drilled to the depth of 262 feet, and was then obtained in abundance; that it was only requisite then to put on a
Order affirmed.
