120 Wis. 1 | Wis. | 1903
Tbe Result of tbis action, whereby the defendant is required to pay the full contract price for a boiler of only about one half the capacity or valúe of that for which it agreed to pay it, is somewhat startling, especially in view of the consideration, understood by both parties, that its only reason for buying a new boiler at all was that the operation of the factory required more steam than the old one could supply. Before reaching such a result, a court should pause to re-examine the rules of law or processes of reasoning upon which it is based. If the law warrants it, the force or value of a contract seems to have vanished. The contractor receives the same compensation for nonperformance as for performance. The general rule of law is firmly established that he who makes an entire contract can recover no pay unless he performs it entirely and according to its terms. Moritz v. Larsen, 70 Wis. 569, 36 N. W. 331; Cohn v. Plumer, 88 Wis. 662, 60 N. W. 1000; Widman v. Gay, 104 Wis. 277, 80 N. W. 450. This general rule has, with considerable hesitation, been relaxed for equitable considerations in certain ■exceptional situations where it is believed to work hardship: First, in favor of laborers who contract to perform personal services, and without fault of either party fail of complete performance (Diefenback v. Stark, 56 Wis. 462, 466, 14 N. W. 621; Walsh v. Fisher, 102 Wis. 112, 78 N. W. 437; Hildebrand v. Am. F. A. Co. 109 Wis. 171, 85 N. W. 268); secondly, in building contracts, where the contractor constructs something on the land of another which by oversight, but in good-faith effort to perform fails to entirely satisfy the contract, but is so substantially in compliance therewith that the structure fully accomplishes the purpose of that contracted for, and the other party voluntarily accepts the benefit thereof, or where the failure is mere inconsiderable incompleteness, and the expense of completion is easy of ascertainment (Malbon v. Birney, 11 Wis. 107; Fuller-W. Co. v. Shurts, 95 Wis. 606, 70 N. W. 683; Williams v. Thrall, 101 Wis.
Proceeding to ascertain how far these principles are applicable to the situation at bar, we are confronted by the fact that substantial performance of the express contract is wholly wanting. The finding is that the boiler furnished was about eighty-two per cent, of the capacity of the old one, instead of 150 per cent., and that the increase of capacity was the vital and essential part of the contract. This is in no sense substantial performance. The boiler does not serve at all the purpose which the larger one would have served, and for
Tbe result is that at tbe close of tbe trial there was no evi-
By the Gourt. — Judgment reversed, and cause remanded with directions to enter judgment dismissing the complaint..