262 F. 637 | D.C. Cir. | 1920
The contract followed a form usually employed by building contractors. It provides that the sum agreed upon “shall be paid by the owner to the contractor in current funds, and only upon certificates of the architect.”
Appellant alleged in his bill that he had completed the building in “strict and full accordance” with the contract, except in certain minor particulars consented to by the owner, and that “the architect arbitrarily, unreasonably, and without just cause declined to give a certificate.” The owner in response denied that the contract had been performed according to its terms, and asserted that in many respects, detailed by him, the contractor failed and refused to do what was required of him, and prayed that the bill be dismissed.
The court deducted from the sum claimed by the appellant the cost of reconstructing the parts which it found were not in accordance with the contract. The testimony of the architect, supported by that of several other competent witnesses, satisfies us that the contractor intentionally failed in the respects mentioned in the decree. 'Phis is' illustrated by the following instances: The specifications called for a concrete floor in the cellar, consisting of a one-inch topping with a three-inch base, making four inches in all. But the floor laid did not
' Under this state of the proof he is not entitled to the benefit of the equitable doctrine of substantial performance. That doctrine—
“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 its protection to present a case in which there has been no willful omission or departure from the terms of his contract.” Gillespie, etc., v. Wilson, 123 Pa. 19, 16 Atl. 36.
In our judgment the correct rule of damages in a case like the one before us is announced in Morgan v. Gamble, 230 Pa. 165, 79 Atl. 410, and Long v. Owen, 21 Idaho, 243, 121 Pac. 99, Ann. Cas. 1913D, 465. In the Morgan Case it is said that the contract provided:
“That Acme anti-rust paint should be used for the tin painting, but in direct violation of this provision of the agreement the plaintiff used Princess’ metallic paint. He does not assign any reason for a change in the paint, but offered, and was permitted, to show on the trial that the paint he used was as good as that provided in the agreement. The defendants had a right to insist upon the substantial performance of these express stipulations of the contract, and the plaintiff was not relieved from this duty by reason of the fact * * * that the paint used by the plaintiff was of the same or a better quality than that provided in the agreement.”
Further on, speaking of the action of the contractor in substituting an iron for a strong lead water pipe, the court said:
“Unless we hold that the contractor had the right to thus change the specific? stipulation in the agreement, and use his own judgment instead of that of*639 the defendants as to the pipe to be laid, we must require him to pay to the defendants, not the difference between the iron and lead pipes, but the cost of laying a lead pipe as provided in the agreement. This is the proper measure of damages.”
The Long Case involved the construction of a sidewalk, which was defective in some particulars, and also failed to meet the requirements of a city ordinance. The court said in reversing a judgment for the contractor:
“If upon a new trial the respondent [contractor] has not yet repaired or reconstructed the walk so as to meet the substantial requirements of the ordinance, there should be deducted from the contract price a sufficient sum to place the walk in condition that it will substantially comply with the specifications prescribed by the city authorities.”
We think it proper, however, to add that in our judgment the cost should always be the equivalent of the prevailing market value of the things omitted.
At the bar it was argued that, if the owner had removed the defective parts and replaced them according to the contract, he might be entitled to deduct the cost of the replacement; but, because he did not do so, but is keeping these parts and using them,, he should pay their value. We cannot accede to this. Appellee, after appellant had refused to perform his contract, had his election either to use those parts or take them up and throw them away. Neither course would result in any benefit to the appellant; therefore, he could not be injured by appellee’s taking the one course rather than the other. If the latter could return to the appellant the defective things, the rule might be otherwise (Mack v. Sloteman [C. C.] 21 Fed. 109; Watson v. Bigelow Co., 77 Conn. 124, 58 Atl. 741), but obviously he could not do so. To remove them would be to destroy them.
To enjoy the house for which appellee had paid nearly $8,000, he was compelled to use, more or less, the defective parts. This did not work an acceptance of them, since they were negligible as compared with the whole, and he had repeatedly said to the appellant that he would not accept them. Equity will not penalize him, in the circumstances, by compelling him to pay for that which he does not want.
Nothing we have said is in conflict with Mercantile Trust Co. v. Hensey, 27 App. D. C. 210. That was an action by the owner for damages because, as claimed, the contractor had not completed the buildings as required by his contract. The owner accepted the buildings and sued for the difference between their value as they were and their value if constructed as agreed. Of course, the measure of damages was the difference between the two values. This must he so in an action of that character. Moulton v. McOwen, 103 Mass. 587; White v. Brockway, 40 Mich. 209, cited by appellant. But it is otherwise where, as here, the plaintiff bottoms his suit on the assumption that he had fully performed his contract. Unless he establishes that, or at least a substantial performance, he must fail.
The law of damages, strictly speaking, has no relation to the issue. Appellant relied upon full performance. In this he failed. The rule adopted by the trial court substituted what the things omitted would
The lower court was right, and its decree is affirmed, with costs.
Affirmed.