City of Elizabeth v. Fitzgerald

• Decision Date: 26 February 1902
• Docket Number: 25.
• Citation: 114 F. 547
• Parties: CITY OF ELIZABETH v. FITZGERALD.
• Court: U.S. Court of Appeals — Third Circuit

114 F. 547

CITY OF ELIZABETH v. FITZGERALD.

No. 25.

United States Court of Appeals, Third Circuit.

February 26, 1902

James C. Connolly, for plaintiff in error.

Henry B. Twombly, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

DALLAS Circuit Judge.

Michael Fitzgerald, the defendant in error, brought an action against the city of Elizabeth, the plaintiff in error, to recover for work done by him under a contract for paving one of the streets of that city. It was defended upon the ground that the work had not been done in accordance with the contract nor certified, approved and accepted in conformity with its terms; and upon its appearing that a portion of it did not literally and exactly conform to the specifications, and that the certificates, approval and acceptance referred to had in fact been withheld, the court was asked to direct a verdict for the defendant. Instead of doing this, the learned judge submitted to the jury the following questions:

'First. Did the plaintiff do the work of paving South Park street substantially according to his contract and specifications? Second. (a) The city surveyor having refused to certify that the work had been done in accordance with the contract and specifications, was that certificate unreasonably refused? (b) The committee on streets and parks, as well as the street commissioner and the inspector, having severally refused to approve and accept the plaintiff's work, was that approval unreasonably refused?'

Each of these questions was affirmatively answered, and thereupon the jury was instructed to render a general verdict for the plaintiff in such sum as, upon the evidence, might appear to be due to him; and this it accordingly did. This mode of procedure, though exceptional, was by no means unprecedented and it was, we think, properly resorted to in this instance. By the answers of the jury to the specific interrogatories propounded, the questions of fact which the court deemed material were distinctly resolved, and by the 'general verdict' the damages to which (if to any sum) the plaintiff was entitled were duly assessed. We are therefore to decide: (1) Whether the questions submitted were, if material, properly for determination by the jury; and, if they were, then (2) whether a substantial performance of the contract on the plaintiff's part was sufficient to support his right of action thereon; and (3) whether, if it was, an unreasonable refusal to certify, approve and accept his work precluded him from recovery.

1. The first of these points presents no difficulty. Whether the plaintiff's work had been done substantially according to the contract and whether the refusals of the city's officers to certify that it had been so done, and to approve and accept it, were unreasonable, were questions of fact; and, as the evidence respecting them was conflicting, the court was unquestionably right in referring them (their relevancy being assumed) to the jury for determination. The extent to which the work done was not in exact conformity with the specifications was itself a subject of controversy. It was not conclusively shown, on the one hand, that the variances were so trivial as to warrant a binding ruling that they were unsubstantial, or, on the other hand, that they were so obviously important as to require the court to charge that they must be regarded as substantial. Therefore the question of substantial performance, if legally pertinent, was necessarily for the jury; and that the reasonableness of the refusals to certify and approve, if at all open to inquiry, was for decision by it, and not by the court, is, upon familiar principles, indubitable.

2. The jury having found that the plaintiff did his work substantially according to the contract, a sufficient compliance therewith on his part was competently ascertained. 'The rule is that a substantial performance must be established to entitle the party claiming the benefit to recover, but this does not mean a literal compliance as to all details. Desmond-Dunne Co. v. Friedman-Doscher Co., 162 N.Y. 486, 56 N.E. 995; McCartan v. Inhabitants of Trenton, 57 N.J.Eq. 571, 41 A. 830. 'Whether * * * alleged defects are substantial or unimportant is a question of fact for the jury. Substantial performance of the entire contract is sufficient, and the jury may properly so find. ' Pitcairn v. Philip Hiss Co., 113 F. 493.

3. The second question propounded to...