26 Colo. App. 251 | Colo. Ct. App. | 1914
Appeal by the defendant from a judgment on a verdict .in favor of the plaintiff, in an action for an unpaid balance on a written contract for the- construction of four dams, which the plaintiff alleges he completed in compliance with the contract, with the further allegation that the defendant accepted the work as it'progressed; including a second cause of action for some extra work done und'er an oral agreement. Defendant claims that the dams were not constructed according to the contract, and the written specifications attached thereto, and that the dams leaked very much, and did not hold the
Three distinct questions of fact were thus clearly presented by the pleadings, and contested at the trial; (a) was the contract fully performed, either by actual fulfillment or by acceptance as such? If so, then the plaintiff could recover the amount sued for on the contract, (b) If not so, then, was there such a substantial performance as would permit a recovery, on the contract, less such amount as would compensate the defendant for failure to strictly perform? If so, then, the plaintiff could recover the amount sued for on the contract, less the amount for such compensation, but if not so, then the plaintiff could not recover on the contract, (c). The issue as tO' the extra work. But the jury was instructed • — ; (1), that it should find for the plaintiff for the balance of the entire contract price, if it found that he had substantially performed the contract; (2), if it found otherwise the verdict should be for the defendant; (3), if it found for the plaintiff it should also allow him such Sum for the extra work as the parties had agreed upon. These instructions were incomplete and wholly insufficient to advise the jury in its deliberations.
It seems neither reasonable nor lawful that the plaintiff should be permitted to recover the entire contract price on a mere substantial performance, unless it were found, under proper instruction, that defendant accepted the work,' and thereby waived a full performance; nor, that the plaintiff should recover for the extra work, unless it were found, under proper instruction, that the new contract was made as plaintiff claimed. Furthermore, in an action on an entire
Anson on the Law of Contract (Huffcut’s 2d Am. Ed.) 352, § 366; Idaho Co. v. Colo. Co., 49 Colo. 66, 72, 111 Pac. 553; Lombard v. Overland D. & R. Co., 41 Colo. 253, 92 Pac. 695; Charles v. Hallack Lbr. Co., 22 Colo. 283, 43 Pac. 548; Spence v. Hamm, 163 N. Y. 220, 57 N. E. 412, 51 L. R. A. 238; Nolan v. Whitney, 88 N. Y. 648; Pitcairn v. Philip Hiss Co., 113 Fed. 492, 51 C. C. A. 323; Bishop on Cont. (2d Enlarged Ed.), §§ 1421 1445; 2 Suth. on Dam. (2d Ed.), § 711; 6 Cyc. 87, 88.
Anson says:
“366. Substantial performance at law. The equitable doctrine of substantial performance has been adopted in common law actions in many states, and particularly in the adjustment of rights under building contract. If the contractor has acted in good faith and has substantially performed, he will be allowed to recover notwithstanding slight deviations from the contract, but his recovery will be diminished by the amount necessary to compensate for the deficiency. But deviations which are more than slight or trivial, or which are wilful, will defeat a recovery. This doctrine of substantial performance applies also to other contracts.”
See also: Phillips v. Gallant, 62 N. Y. 256; Woodward v. Fuller, 80 N. Y. 312; Hattin v. Chase, 88 Me. 237, 33 Atl. 989; Crouch v. Gutman, 134 N. Y. 45, 31 N. E. 271, 30 Am. St. 608; Ashley v. Henahan, 56 O. St. 559, 47 N. E. 573.
Furthermore, the court in such instances, should explain to the jury that substantial performance permitting a recovery on the contract means an attempt in good faith to strictly
See foregoing authorities.
Such right to recover on the contract is fully explained in the authorities cited, and it is further disclosed that when the action is on the contract, claiming full performance, and a recovery is allowed on a substantial performance less such amount as would be required to' compensate the defendant, the burden is upon the plaintiff to prove such substantial per-, fonhance as will entitle him to so recover, and also establish the amount necessary to compensate the defendant for failure of performance.
Spence v. Ham, 163 N. Y. 220, 226, 57 N. E. 412, 51 L. R. A. 238.
In that case the court said:
“The contractor cannot recover the entire contract price, .when defects or omissions appear, for he must show not only that they were unsubstantial and unintentional, but also the amount needed to make them good, so that it can be deducted from the contract price and a recovery had for the balance only. This is an essential part of substantial performance, and hence the proof should be furnished by the one who claims substantial performance.”
The same opinion is indicated in Walling v. Warren, 2 Colo. 434, 438.
It seems, however, there would be no reason why this burden as to compensation might not be shifted to the defendant, employer, if it be so assumed, in the pleadings and, on the trial: Leeds v. Little, 42 Minn. 414, 40 N. W. 309. Niemeyer v. Woods, 72 Ap. Div. 636, 76 N. Y. Supp. 563.
In the pending case the defendant pleaded what he calls a counter-claim for damages, which is in effect nothing more
The judgment must be reversed for lack of any instructions in a legal sense, and the foregoing exposition of the law is made in ¡contemplation of another trial, and in the further contemplation that plaintiff may desire to recover on a substantial performance as distinguished from a strict performance, in case he fail to satisfy the jury that he has strictly performed, and that the work was accepted, as he alleged.
This case seems to have been tried on the theory of a strict and full performance, and if the parties try it again in the same way, the plaintiff could recover, only upon proof of full performance, or upon proof that the defendant accepted the work done as a full performance.
Lombard v. Overland D. & R. Co., supra; Elliott v. Caldwell, 43 Minn. 357, 45 N. W. 845, 9 L. R. A. 52; Gillespie Tool Co. v. Wilson, 123 Penn. 19, 16 Atl. 36.
The pleadings are sufficient, however, fe> permit a trial as heretofore indicated, followed by instructions on the issues as hereinbefore pointed out. The parties may amend, however,^ as they may be advised.
Now, as to the extra work; it seems a dispute arose at the time the plaintiff ¡claims to have completed the work, in regard to the digging of some holes in a place not authorized by the defendant, the contract providing that the dirt with which to build the dams should be taken, from places designated by the defendant. When this dispute arose, a new contract was entered into, settling the dispute as to the filling of the holes, by which new contract the defendant claims the
Reversed and remanded for further proceedings in accordance with this opinion.