24 A.2d 929 | Pa. Super. Ct. | 1941
Argued November 21, 1941. Plaintiff brought this action in assumpsit to recover $1,759.88 (with interest from February 3, 1938, which, at the time of the trial, brought the claim to $2,072.26), being the balance due under a contract, under the terms of which plaintiff agreed to install an air conditioning system in defendants' theatre. The contract price was $8,200, of which defendants paid, in installments, $6,440.12, leaving the aforesaid balance. Defendants contended and offered evidence to show that the system did not operate as guaranteed, that it was defective and that it would have cost $1,431 to perfect it. The verdict was for defendants. Plaintiff has appealed from the refusal of its motion for a new trial.
Plaintiff contended it fully performed but, if not, itsubstantially performed its part of the contract and that it was, therefore, entitled to at least a verdict for the difference between the balance due and what the jury should determine was the cost of perfecting the system, under the equitable doctrine of substantial performance. Defendants, recognizing the validity of the doctrine in general, contended plaintiff was not entitled to the benefit of it here because its failure to complete performance was wilful. There was ample evidence from which the jury could find plaintiff's failure to complete the job was wilful. The theatre was opened June 25, 1937 and the system did not work properly from the beginning. The first written complaint was made July 3, 1937 and at the trial counsel for plaintiff admitted that *607 "continual complaints" were made thereafter. The evidence indicated that plaintiff knew exactly what was required to perfect the system and, though some of the minor complaints were adjusted, it made no effort to remedy others, particularly the automatic controls. We think this feature of the case was properly left to the jury. The issues of fact whether the system was defective, whether the performance was nevertheless substantial, and what it would cost to perfect the system were all fairly submitted to the jury. But plaintiff complains that the court erred in charging the jury that, if they found the failure to complete the performance was wilful, their verdict should be for defendants.1
The equitable doctrine of substantial performance has been recognized in our cases since Liggett v. Smith, 3 Watts 331. The early history is briefly outlined in the opinion of Mr. Justice ELKIN in Pressy v. McCornack,
After carefully reviewing the evidence and the charge of the court as a whole, we are of the opinion the record contains no reversible error. The assignments of error are overruled and the judgment is affirmed.
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