84 A. 427
Pa.
1912

Opinion by

Mr. Justice Elkin,

The primary question for determination is whether the equitable doctrine of substantial performance under the terms of a building contract should be applied to the facts of the present case. The rigid rule as to strict performance may primarily be regarded as the law of Pennsylvania, but in many cases it has been relaxed in favor of the more equitable doctrine. While the cases in which substantial performance was held to apply may be said *447to be an exception to the rule, the exception is as well established as the rule itself. The doctrine was first announced by the English courts in Boone v. Eyre, 1 H. Black 273, and was adopted by this court as far back as Ligget v. Smith, 3 Watts 331. In Preston v. Finney, 2 W. & S. 53, it was held, in an action upon a written contract to recover for services performed, that failure to perform in slight particulars will not defeat a recovery, if, it appears that the plaintiff acted with a bona fide intention of performing the whole contract, and the other contracting party received the fruits of the work done. Following these cases this court decided in Chambers v. Jaynes, 4 Pa. 39, that a plaintiff who had substantially and bona fide complied with the covenants of a written contract, is not precluded by slight omissions from receiving a fair compensation according to the terms of the contract, if the breaches can be compensated in damages. Mr. Justice Bell in discussing the equitable doctrine of substantial performance in Danville Bridge Co. v. Pomroy, 15 Pa. 151, said: “Where a party, acting honestly, and intending to fulfill his contract, performs it substantially, but fails in some comparatively unimportant particulars, the other party will not be permitted to enjoy the fruits of such imperfect performance without paying a fair compensation according to the contract, receiving a credit for any loss or inconvenience suffered. And, perhaps, it may be asserted, that where a thing is so far perfected as to answer the intended purpose, and it is taken possession of and turned to that purpose by the party for whom it is constructed, no mere imperfection or omission, which does not virtually affect its usefulness, can be interposed to prevent a recovery, subject to a deduction for damages, consequent upon the imperfection complained of.” There has been no departure from the rule stated in- the foregoing cases, indeed, it has been recognized and approved in many subsequent cases. See Pepper v. Philadelphia, 114 Pa. 96; Gallagher v. Sharpless, 134 Pa. 134; *448Holmes v. Oil Company, 138 Pa. 546; Filbert v. Philadelphia, 181 Pa. 530. While the rule must be regarded as settled, it is often difficult to determine, whether under the facts of a particular case, it should be applied.

There must in every case be substantial performance of the contract, and unless there be substantial compliance, there can be no recovery; but, whether there has been substantial performance, depends upon the character of the changes or alterations complained of, that is to say, do they materially affect the completed structure and were they in good faith honestly intended to fulfill the contract. Whether the party acted in good faith, and whether the departures were material are generally questions for the jury: Truesdale v. Watts, 12 Pa. 73; Pallman v. Smith, 135 Pa. 188; Cosgrove v. Cummings, 190 Pa. 525. This is always true if the facts relating to the good faith of the plaintiff and the materiality of the changes or alterations are in dispute. On the other hand, if the undisputed testimony shows a substantial variance, not authorized by the owner, and made without his knowledge or assent, it is the duty of the court to so declare as a matter of law: Harris v. Sharples, 202 Pa. 243. In the present case the facts are disputed, and, in our opinion, the learned court below committed no error in submitting to the jury the questions upon which the rights of the parties depend. Under the evidence it was a fair question whether the appellant had authorized the contractor to lower the elevation of the houses so as to better suit the contour of the ground upon which they were located. We must assume that the jury found this fact in favor of the contractor, and if this change was authorized, or assented to, the changes in the cellar windows, followed as a necessary consequence. The explanation of the failure to provide certain joists of the size specified is consistent with an honest intention to faithfully perform the contract and the evidence shows that this defect was easily remedied. On all these questions the case was for the *449jury. It was submitted by the learned trial judge in a charge free from just criticism, at least so far as the question of substantial performance was involved.

The third assignment raises a different question. It is contended that the learned trial judge committed reversible error in refusing to affirm the eighth point of the defendant upon the question of damages for failure to complete the houses at the time specified in the contract, and in failing to give any instructions to the jury upon this question. We cannot agree that the point should have been affirmed as submitted, because it assumed as a fact, that appellant had neither expressly, nor impliedly, by his acts waived this provision of the contract, and that the contractor had no justification for the delay in completing the houses. The point amounted to binding instructions to make the deductions claimed without reference to whether the owner had made any objection to the delay, or by his conduct, had given the contractor grounds for believing that, the penalty for delay would not be enforced. It was held as late as Philadelphia v. Tripple, 230 Pa. 480, that where a building contract provides a time limit, but the contractor after the expiration of the time limit has been permitted to continue the work, and receives payment therefor, the owner will be deemed to have waived the nrovision as to the time limit. To the same effect is Coryell v. Dubois Borough, 226 Pa. 103. It would have been better practice to have submitted this question to the jury, under proper instructions by the court, but the trial judge in the case at bar was not bound to affirm a point which did not fully and correctly state the law under the facts. The evidence shows that six different payments were made on account from December 7, 1906, to February 1, 1908. All of these payments were made after the time limit had expired, and there is no evidence to show that appellant made any objection to the delay. Under these circum*450stances an affirmance of the point in question would not have correctly stated the law.

Assignments of error overruled and judgment affirmed.