Andre v. Maguire
| Decision Date | 27 March 1940 |
| Citation | 26 N.E.2d 347,305 Mass. 515 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | MANUEL J. ANDRE v. JOHN J. MAGUIRE & another. |
February 8, 1940.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & COX, JJ.
Contract, Implied Building contract, Performance and breach.
Intentional departures by a contractor from the requirements of a building contract in material respects and without reasonable excuse or assent by the owner precluded recovery by the contractor upon a quantum meruit even if the contract was substantially performed and the contractor had made certain changes desired by the owner at extra cost to himself and without extra charge.
CONTRACT. Writ in the District Court of Brockton dated January 4, 1939. On a report by Murphy, J., who found for the defendants on the first count, and for the plaintiff on the second and third counts of the declaration, the Appellate Division for the Southern District ordered the findings on the first and second counts affirmed and the finding on the third count vacated and a finding for the defendants thereon entered. The plaintiff appealed.
The case was submitted on briefs.
E. J. Campbell, for the plaintiff. J. R. Wheatley, for the defendants.
QUA, J. A building contractor brings this action in three counts against the owners of a house which the plaintiff agreed in writing with the defendants to construct according to certain plans and specifications for an entire price of $5,675. The first count is on the written contract. The second count is for extras. The third count is on a quantum meruit for labor and materials furnished in the construction of the house. After a finding for the defendants on the first count and for the plaintiff on the second count, the question still in dispute is whether the plaintiff can recover on the third count for building the house.
The law has long been settled in this Commonwealth, in relation to building contracts, that a contractor cannot recover on the contract itself without showing complete and strict performance of all its terms, but that, failing in such complete performance of the contract, he may recover on a quantum meruit, if he can prove both substantial performance of the contract and an endeavor on his part in good faith to perform fully, and the burden is upon him to prove both. Hayward v. Leonard, 7 Pick 181. Bowen v. Kimbell, 203 Mass. 364 , 371. Divito v. Uto, 253 Mass. 239 . Zarthar v Saliba, 282 Mass. 558 , 561. In the absence of special exculpating circumstances an intentional departure from the precise requirements of the contract is not consistent with good faith in the endeavor fully to perform it, and unless such departure is so trifling as to fall within the rule de minimis, it bars all recovery. Sipley v. Stickney, 190 Mass. 43 , 46. Lynch v. Culhane, 237 Mass. 172 , 175. Smedley v. Walden, 246 Mass. 393 , 400. Glazer v. Schwartz, 276 Mass. 54 , 57.
In the case at bar the testimony of the plaintiff...
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