Burke v. Coyne
| Decision Date | 21 June 1905 |
| Citation | 188 Mass. 401,74 N.E. 942 |
| Parties | BURKE v. COYNE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Vahey, Innes & Mansfield, for petitioner.
Augustine J. Daly and Francis J. Carney, for respondent.
If the petitioner had fully performed the entire contract made with the respondent, he could have established a lien for labor performed and for labor and materials furnished under it. But the parties were at issue over this question. While he claimed to have fully carried out his agreement, the respondent contended that there had been a failure to substantially complete it in good faity, because of a willful variation from the plans and specifications in many particulars. The issues framed to cover this dispute were not sufficiently full. For the distinction is apparent between a strict compliance, which was all that was covered by the language used in the second issue, and substantial completion in good faith of the contract. Apparently with the consent of the parties, the presiding judge attempted to cure this defect, and to read into the issue what it lacked to make clear and definite the real question involved, by instructing the jury that it meant, 'Did the petitioner substantially perform his contract?' As thus construed, and submitted it was answered in the negative. From this answer there is but one conclusion to be drawn, which is that the jury found the petitioner had failed not only to carry out his agreement as to trivial details, but had been guilty of material deviations.
The third issue also was construed to mean an inquiry as to how far the work and materials had enhanced the value of the respondent's estate. Again, this is a different inquity than the ascertainment of the value of the labor and materials furnished. Gillis v. Cobe, 177 Mass. 584 594, 59 N.E. 455. In answer to this question, the amount found due was afterwards treated as the sum for which, if at all, a lien should be established. Under the instructions of the court, in answer to the third issue the sum stated represented the amount due the petitioner after allowing to the respondent whatever expenditure was required to supply the omitted work and materials. Or it may be said that the difference between the price named in the contract and the outlay necessary to remedy defects measures the value furnished by the petitioner. Norwood v. Lathrop, 178 Mass. 208, 210, 59 N.E. 650.
In view of the trifling difference between the agreed price and what he is found to have done, it is difficult to see how the jury reached the result shown by their answer to the second issue, unless, notwithstanding the instructions, they followed its literal wording. Nevertheless their answer must be treated as conclusive.
The result reached by the answers to the issues as thus interpreted and followed in the final order of the court, is that, although the petitioner materially failed to complete his contract, he is entitled to a lien to the extent of the increased value of the respondent's premises due to the work and materials contributed by him. After beginning the work there was no abandonment, and he voluntarily went forward until he had accomplished what was claimed by him to be a full compliance with the agreement. But where substantial performance is not found, the general rule that an express contract excludes an implied one covering the same subject controls. Stark v. Parker, 2 Pick. 267, 274, 13 Am. Dec. 425; Olmstead v. Beale, 19 Pick. 528. If he honestly had failed by reason of slight changes, of little value, he could not recover on the contract itself, unless it was shown that the plumbing had been accepted, thus waiving any defects. Wiley v. Athol, 150 Mass. 426, 435, 23 N.E. 311, 6 L. R. A. 342; Allen v. Mayers, 184 Mass. 486, 69 N.E. 220. Yet where...
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...69 N.H. 466, 43 A. 621; McKinney v. Springer, 3 Ind. 59, 54 Am. Dec. 470; Connolly v. Sullivan, 173 Mass. 1, 53 N.E. 143; Burke v. Coyne, 188 Mass. 401, 74 N.E. 942. however, the defendant is in default, and his act prevented the performance of the contract, the rule is different. Under suc......
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...v. Culhane, supra. The plaintiff, therefore, cannot enforce his lien either upon the contract or upon a quantum meruit. Burke v. Coyne, 188 Mass. 401, 404, 74 N. E. 942; Pelatowski v. Black, supra. The defendant's answer in the nature of a cross-bill seeks affirmative relief for damages. We......
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