324 Mass. 182 | Mass. | 1949
The plaintiff brings this bill to compel
specific performance of a provision contained in a construction contract whereby the defendants agreed to execute a conditional sale agreement and a promissory note.
The facts may be summarized as follows: The plaintiff is a corporation engaged in the business of remodelling and equipping stores and restaurants. The defendants for some years have been engaged in conducting a restaurant in the city of Lynn. On October 13, 1945, the plaintiff and the defendant Katina Totoni, acting on behalf of herself and the other defendants, entered into a contract in writing whereby the plaintiff undertook to remodel their restaurant. The sum fixed in the contract for the work to be done and the equipment to be installed was $26,200, $16,200 of which was to be paid in certain amounts from time to time on or before the completion of. the work. The balance of $10,000 plus interest was to be paid in eighteen equal monthly instalments and was to be “secured by . . . [the plaintiff’s] standard conditional sales contract and note.”
No time was fixed in the contract for the commencement or completion of the work. The plaintiff commenced work about April 1, 1946, and completed it around the middle of July, 1946. The judge found that during the course of the work certain changes in the contract were mutually agreed to by the parties whereby certain items were added and others were omitted. The contract called for the installation of “Herculite” doors. Before the work began the plaintiff sent a letter to the defendants stating that it was encountering difficulty in obtaining these doors and suggested that the work on the contract should go forward and that temporary doors be used in the meanwhile. The plaintiff went on to say that it would like to know immediately whether this proposal met with the defendants’
The sum found to be due the plaintiff under the contract after computing the cost of extras and deducting the sums to be credited to the defendants
The defendants challenge the decree on the grounds that the bill proceeds on the basis of a special contract alleged to have been fully performed by the plaintiff and broken by the defendants; that in order to recover under such averments the plaintiff was required to show that it performed the contract completely; and that the facts show that the plaintiff did not fully perform. There is no merit in these contentions. The express findings of the judge and those
The case does not fall within decisions relied on by the defendants holding that recovery for substantial though inexact performance, even where exact performance is waived, cannot be had upon pleadings alleging full performance. Allen v. Burns, 201 Mass. 74. Hennessey v. Preston, 219 Mass. 61. Searls v. Loring, 275 Mass. 403, 406-407. Here there was a substituted performance agreed upon by the parties and not a mere waiver of nonperformance. What was done was the agreed equivalent of what was originally promised and recovery may be had upon averments of performance. Lampasona v. Capriotti, 296 Mass. 34, 39-40. In the case of the “Frialator” the findings establish that the plaintiff through no fault or neglect on its part could not obtain it until shortly after the job had otherwise been completed and that, within a reasonable time, the plaintiff tendered it to the defendants who then “decided they did not want it.” This did not, in our opinion, constitute a breach of the contract on the part of the plaintiff. The plaintiff, therefore, was entitled to recover the sum found to be due under the contract, as modified.
The decree rightly gave to the plaintiff the same rights it would have had if the defendants had executed the conditional sale agreement and note. The defendants were obligated under the original contract to execute it and their failure to do so on the findings of the judge was without excuse. This is a case for the application of the maxim that equity regards that as done which ought to have been done.
Decree affirmed with costs.
Other relief sought by the bill has become immaterial and need not be discussed.
The amounts credited included the following: allowances for items omitted by agreement, the cost of the “Herculite” doors and the "Frialater,” and the sums which had been paid by the defendants on account.
These consisted of furniture and equipment furnished under the contract which would have been included in the conditional sale agreement had it been executed.
A copy of this agreement was in evidence.