Dodge v. Kimball

• Decision Date: 20 October 1909
• Citation: 203 Mass. 364,89 N.E. 542
• Parties: DODGE v. Kimball
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

203 Mass. 364

89 N.E. 542

DODGE v. Kimball

Supreme Judicial Court of Massachusetts, Berkshire.

October 20, 1909

KIMBALL et al. ^[*] Oct. 20, 1909.

COUNSEL

Milton B. Warner, for appellant.

Carlton T. Phelps and Chas. J. Parkhurst, for appellees.

OPINION

KNOWLTON C.J.

The plaintiff, Dodge, made a contract in writing to erect a large building for the defendants in North Adams. He received many payments under the contract, and afterwards brought this suit to recover the balance of the contract price. Having become a bankrupt, his trustee was permitted to come into court and prosecute the suit. By agreement of parties the case was referred to a referee, whose determination of all matters of fact was to be final; his decision of questions of law being subject to review by the court. He reported that the plaintiff was not entitled to recover and judgment was ordered for the defendant on his report. The case comes before us on an appeal by the plaintiff, which presents for our consideration all questions of law that appear of record.

The declaration contains two counts, one upon the contract and the other upon an account annexed. The plaintiff now concedes that he is not entitled to recover upon the contract, and he relies upon the common counts, which are open to him under the count upon the account annexed.

The price fixed by the contract was $96,500. It was admitted that the defendants were entitled to an allowance of $90 for a saving in the price of face brick, and that payments have been made amounting to $87,195. $9,215 is the balance claimed in this action.

There were many particulars in which the defendants contended that the plaintiff failed to perform his contract. In regard to some of these the findings of the referee were for the plaintiff. But besides the plastering, of which we shall speak hereafter, there were ten different particulars in which it was found that the contract was not performed, for each of which the defendants would be entitled to an allowance, if they were obliged to pay at all. The deductions that ought to be made on account of these departures from the contract were found by the referee to amount in the aggregate to $4,071. It is not contended that any error of law entered into these findings.

The specifications in regard to the plastering provided, among other things, that the first coat for the whole building should be 'good lime and hair mortar and mixed when used with adamant plaster, two bags of adamant to one hod of lime mortar.' It declared that 'this mixture must be strictly adhered to without any deviation whatever.' The findings on this point are as follows: 'The adamant referred to in these specifications is a patented composition of the class commonly called hard plasters. It contains a considerable amount of plaster of paris. It sets more quickly than lime and mortar plastering and gives a harder surface less liable to injury from blows of any kind, and is quite commonly used in modern office buildings. It is somewhat more expensive than lime and mortar plastering. I find that in plastering this building the plaintiff used less than half the adamant called for by the specifications. I find that this was an intentional departure from the contract in a substantial matter, which cannot be remedied afterwards without disproportionate expense. I further find that the composition of the plaster was not known to the architect until after the certificates given by him under the contract had all been issued. I further find that the plaintiff is not entitled to recover in this action. * * * I find that the cost of removing the plaster in the building and replastering with plastering mixed in accordance with the specifications including the necessary retinting of walls, would be $7,000; but I further find that the owner would not be justified in incurring such expense, and that the difference between the value of the building as actually plastered and as it would have been if plastered in accordance with the specifications is $800.'

The plaintiff contends that the conclusion of the referee in this particular is erroneous in law, and that the judgment should be reversed. This contention seems to be two-fold: First, that an intentional departure from the contract in a matter of this kind will not preclude the contractor from recovering on a quantum meruit; and, secondly, that, as matter of law, the referee could not find that there was not a substantial performance of the contract. It becomes necessary to consider the law of Massachusetts in these particulars.

It is to be noticed, first, that the question whether there was a substantial performance of the contract is to be determined in reference to the entire contract, and what was done or omitted under it, and not in reference to the plastering alone. The referee might well find that the plaintiff failed to perform the contract substantially, in view of all his departures from it, even if he would not have made that finding upon the defective plastering alone. The validity of the finding must be determined in reference to all the facts of the case. But as the referee indicates that this breach is the principal reason for his decision we will consider this branch of the case by itself.

Formerly it was generally held in this country, as it is held in England, that a contractor could not recover under a building contract, unless there was a full and complete performance of it, or a waiver as to the parts not performed, and that he could not recover on a quantum meruit after a partial performance from which the owner had received benefit, unless there had been such subsequent dealings between the parties as would create an implied contract to pay for what had been done. Smith v. Brady, 17 N.Y. 185, 72 Am. Dec. 442; Ellis v. Hamlin, 3 Taunt. 52; Munro v. Butt, 8 E. & B. 738; Sumpter v. Hedges, [1898] 1 Q. B 673, and cases cited. But in most of the American states a more liberal doctrine has been established in favor of contractors for the construction of buildings, and it is generally held that if a contractor has attempted in good faith to perform his contract and has substantially performed it--although by inadvertence he has failed to perform it literally according to its terms--he may recover under the contract, with a proper deduction to the...