Andre v. Maguire
| Citation | 26 N.E.2d 347,305 Mass. 515 |
| Parties | ANDRE v. MAGUIRE et al. |
| Decision Date | 29 March 1940 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Action by Manuel J. Andre against John J. Maguire and another and trustee, on contract for construction of house, for extras, and for labor and materials furnished. From an order of the Appellate Division directing entry of finding for defendants on the third count, for labor and materials, plaintiff appeals.
Affirmed.Appeal from District Court of Brockton; Murphy, Judge.
E. J. Campbell, of Brockton, for plaintiff.
John R. Wheatley, of Brockton, for defendants.
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 defendant 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, 19 Am.Dec. 268;Bowen v. Kimbell, 203 Mass. 364, 371, 89 N.E. 542,133 Am.St.Rep. 302;Divito v. Uto, 253 Mass. 239, 148 N.E. 456;Zarthar v. Saliba, 282 Mass. 558, 561, 185 N.E. 367. 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 re covery. Sipley v. Stickney, 190 Mass. 43, 46, 76 N.E. 226, 5 L.R.A.,N.S., 469, 112 Am.St.Rep. 309,5 Ann.Cas. 611;Lynch v. Culhane, 237 Mass. 172, 175, 129 N.E. 717;Smedley v. Walden, 246 Mass. 393, 400, 141 N.E. 281;Glazer v. Schwartz, 276 Mass. 54, 57, 176 N.E. 613.
In the case at bar, the testimony of the plaintiff himself, by which he is bound, discloses numerous instances of intentional departures from the specifications. It does not appear that the defendants assented to these departures, and there was no evidence of any reasonable excuse for them. Some, if not all, of these departures were...
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...a contractor cannot recover on the contract itself without showing complete and strict performance of all its terms," Andre v. Maguire, 305 Mass. 515, 516, 26 N.E.2d 347 (1940), with a materiality rule as provided in the Restatement (Second) of Contracts §§ 237, 479 Mass. 723 241 (1981). Al......
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