213 Mass. 428 | Mass. | 1913
In this case no question now is made but that the petitioners substantially performed their contract in good faith; and it seems to have been agreed by both parties that if so, the amount due to them was the contract price, increased by what should be allowed for extra work and diminished by the deduction of the payments which they had received and of what should be allowed for certain defects in their performance. The judge ruled that the latter deduction should be of whatever amount the jury might find to be necessary to remedy any deficiencies in the performance of the contract, and refused to rule, as requested by the petitioners, that the deduction should be of the difference between the value of the work as done and its value if done according to the contract.
The respondent had put in evidence that there were some omissions and several defects in the construction of the house called for by the contract, some of which apparently were of such a character that they could not reasonably have been remedied so as to make the work correspond exactly to the specifications of the contract. If this were so, it is settled by our decisions that under the circumstances here presented the rule of damages contended for by the petitioners was the correct one, that is, as was stated in Gleason v. Smith, 9 Cush. 484, there should be deducted from the contract price the amount by which the value of the house as left by the petitioners fell short of what that value would have been if the contract had been exactly performed. Moulton v. McOwen, 103 Mass. 587, 598. Cullen v. Sears, 112 Mass. 299, 308. White v. McLaren, 151 Mass. 553, 557. Norwood v. Lathrop, 178 Mass. 208, 210. Norcross Brothers Co. v. Vose, 199 Mass. 81, 95, 96. Bowen v. Kimbell, 203 Mass. 364, 370. This, as applied to the case before us, is the rule laid down in Gillis v. Cobe, 177 Mass. 584, and Eastern Expanded Metal Co. v. Webb Granite & Construction Co. 195 Mass. 356, 362.
Exactly the same rule, as to this question, is to be applied to a petition for the enforcement of a mechanic’s lien as to an action upon a quantum meruit by a builder against a landowner or by the latter against the former for damages by reason of defective con
This is not like the cases where a contractor has abandoned his yf work while yet unfinished, or has left undone some details merely / which he ought to have supplied. In such cases the measure of damages to be recovered or recouped well might be the reasonable cost of completing the work. This distinction was pointed out | in Gleason v. Smith, 9 Cush. 484. See also Veazie v. Hosmer, 11 Gray, 396; McCue v. Whitwell, 156 Mass. 205, 208; Olds v. Mapes-Reeve Construction Co. 177 Mass. 41, 43; Hebb v. Welsh, 185 Mass. 335; Burke v. Coyne, 188 Mass. 401, 404; and John Soley & Sons v. Jones, 208 Mass. 561, 568.
The evidence of Carter as to the cost of remedying the defects which he found in the petitioners’ construction was not incompetent. It had a direct bearing upon the issue of substantial performance by the plaintiff, which was then in dispute. See Handy v. Bliss, 204 Mass. 513. But its admission made it the more necessary to give to the jury the correct rule for the assessment of damages.
We do not doubt that the contention made by the petitioner is open upon these exceptions. Brick v. Bosworth, 162 Mass. 334. Robertson v. Boston & Northern Street Railway, 190 Mass. 108.
The exceptions must be sustained; but the new trial should be only upon the first issue and should be confined to the determination of the amount due to the petitioners. All other questions have been properly passed upon. Randall v. Peerless Motor Car Co. 212 Mass. 352, 391, 392.
Exceptions sustained.
