Smyers v. Zmitrovitch

55 Pa. Super. 440 | Pa. Super. Ct. | 1913

Opinion by

Morrison, J.,

This is a scire facias sur mechanic’s lien and the issue was whether or not the plaintiff was entitled to recover an alleged balance due him for building a small dwelling house for defendant on the ground of a substantial performance of his contract by the former. It wvas proved that the contract required plaintiff to place building paper between the siding and the sheeting boards of the house and it is conceded that this was not done as to a material portion of the house, and when the defendant called the plaintiff’s attention to this omission and failure to comply with the terms of the contract the plaintiff flatly refused to remove the siding and put the paper on as he had agreed to do. The learned trial judge submitted the question to the jury as to whether or not there was such a substantial performance by the plaintiff as would entitle him to recover the contract price less a reasonable deduction on account of the failure to fully perform. We think the learned trial judge .erred in so submitting the case to the jury. The equitable right to recover on the ground of substantial performance involves an honest effort on the part of the contractor to fully comply with the strict terms of the contract resulting in minor defects which do not seriously injure the other party to the contract. But in this case there was an intentional refusal of plaintiff to place building paper on a material portion of the house. In such case it was serious error to permit the jury to find substantial performance and attempt to make the defendant good by allowing him a few dollars damages. This view is fully sustained by the following cases: Gillespie Tool Co. v. Wilson, 123 Pa. 19; Hartman v. Meighan, 171 Pa. 46; Morgan v. Gamble, 230 Pa. 165. In Gillespie Tool Co. v. Wilson, 123 Pa. 19, it is said: “The equitable doctrine of substantial performance is intended .for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadvertent, or unimportant omissions or defects. It is incumbent on him who invokes this protection to present a case in which there has been no willful omission or departure from the terms of his contract. If he fails to do so, the question of substantial performance should not be submitted to the jury.”

Plaintiff’s failure to fully perform his contract was not only proved but he fully admitted his refusal to put building paper on a part of the house.

It is contended by plaintiff’s learned counsel that the judgment should be affirmed because the defendant paid half of the contract price and when plaintiff claimed that his contract was completed, defendant took possession of the house. Counsel cites Pressy v. McCornack, 235 Pa. 443, and Smith, Trustee, v. Cunningham Piano Co., 239 Pa. 496. But we see nothing in those cases that will sustain the trial judge in allowing the present case to go to the jury. The defendant had paid about half of the contract price and he probably needed his house, and we are of opinion that taking possession of it did not waive the willful refusal of the plaintiff to comply with a material part of his contract.

At the trial defendant’s counsel presented a point asking for a binding instruction in favor of defendant, which point was refused. After the verdict was rendered in favor of plaintiff, defendant’s counsel moved for judgment in favor of defendant non obstante veredicto and this motion was refused and judgment directed to be entered on the verdict and an exception granted to defendant.

The assignments of error are sustained and the judgment is reversed with directions to the court below to grant judgment in favor of defendant non obstante veredicto.