Dowling v. Whites Lumber & Supply Co

• Decision Date: 14 May 1934
• Docket Number: 31146
• Parties: DOWLING et al. v. WHITES LUMBER & SUPPLY CO
• Court: Mississippi Supreme Court

154 So. 703

170 Miss. 267

DOWLING et al. v. WHITES LUMBER & SUPPLY CO

No. 31146

Supreme Court of Mississippi

May 14, 1934

Division B

Suggestion Of Error Overruled June 11, 1934.

APPEAL from chancery court of Lauderdale county HON. A. B. AMIS SR., Chancellor.

Suit by Whites Lumber & Supply Company against Mrs. L. L. Dowling and others. Decree for complainant, and defendants appeal. Affirmed.

Affirmed.

Gabe Jacobson, of Meridian, and G. Garland Lyell, of Jackson, for appellants.

The contract was not substantially performed and the appellants had a right to reject the building and terminate the contract.

West et al. v. Suda, 36 A. 1015; Peacock et al. v. Gleason, 90 N.W. 610; Law & Company v. Paxton, 93 S.W. 354.

It is well settled that one is not compelled to accept work which does not conform to the contract, and that no recovery can be had on the contract where the contractor had not complied with the specifications.

Eaton v. Gladwell, 80 N.W. 292; Allen v. Kibbin, 5 Mich. 449; Martus v. Houck, 39. Mich. 431, 33 Am. Rep. 409; Handley v. Walker, 79 Mich. 646, 45 N.W. 57; Eaton v. Gladwell, 108 Mich. 678, 66 N.W. 598; Fisher v. Goodrich, 70 N.Y.S. 38; Braseth v. State Bank, 98 N.W. 79; Glacius v. Black, 10 Am. Rep. 449; John R. Carpenter Co. v. Ellsworth, 136 N.Y.S. 108; D'Amato v. Gentile, 66 N.Y.S. 833; 3 Williston on the Law of Contracts, page 2614, sec. 1467; Restatement of the Law of Contracts, Failure of Consideration as a Discharge of Duty, page 401, sec. 274, "D;" 2 Restatement of the Law of Contracts, page 750, sec. 397; 9 C. J. 736, 737, sec. 76; Terry et al. v. Quackenbush, 38 P. 742; Robinson v. DeLong, 118 Miss. 280, 79 So. 95; 9 C. J. 819; Wooten v. Reed, 2 Smedes & M. 585.

The contract here sued upon is an entire contract and not a divisible one.

Greenwood Lbr. Co. v. Lanham, 129 Miss. 40, 91 So. 703; Mitchell v. Williams, 80 N.Y.S. 864; Gompert v. Healy, 133 N.Y.S. 689.

The appellants had the right to repudiate, renounce or stop the performance of the contract at any time, and then the appellee's right of an action for damages for the breach of the contract at that time accrued if the appellants breached the contract without sufficient cause, and the appellee had no right to complete the contract thereafter and recover the entire contract price.

Craig et al. v. Higgins, 224 P. 668; Gibbons v. Bent, 22 L. R. A. 80; Wigent v. Marrs, 90 N.W. 422; Chicago Building & Mfg. Co. v. Barry et al., 52 S.W. 451; 66 A. L. R. 747.

After the tender of the residence was made to the appellants on June 15th and not accepted by them, because the contract was not substantially performed, the appellants had the right to terminate the contract, and the subsequent work to complete the performance of the contract done by the appellee could not bind the appellants.

Fisher v. Goodrich, 70 N.Y.S. 38; Peacock v. Gleason, 90 N.W. 640; Vicksburg Water Co. v. Gorman, 70 Miss. 360; Meridian Waterworks Co. v. City of Meridian, 85 Miss. 515; Restatement of Law of Contracts, secs. 550 and 551; Young v. Crescent Development Co., 148 N.E. 510; Clark et al. v. Mt. Gilead Baptist Church et al., 156 N.Y.S. 305; National Contracting Co. v. Hudson, etc., 192 N.Y. 220, 221, 84 N.E. 965; Haggart v. Morgan, 55 Am. Dec. 350; Liddell v. Sims, 9 Smedes & M. 609; Nance v. Patterson Building Co., 131 S.W. 484.

Victor W. Gilbert and Chas. B. Cameron, both of Meridian, for appellee.

Whether a contractor has finished a house according to contract is a question of fact. The chancellor held that the undisputed evidence was that the house was completed in literal conformity to the contract.

It is not disputed that there was no time fixed for the completion of the job nor that the provision that it should be completed at the "earliest possible date" meant within a reasonable time.

9 C. J. 778, sec. 120.

When it is remembered that the Dowlings were not to pay a cent until the contract was completed, and that when more than six thousand dollars ($ 6,000) had been expended on the house the Dowlings not only undertook to forfeit the contract and pay nothing, but demanded damages for use of the lot and that the building be removed from the lot, and also for a restoration of the fixtures, plumbing, etc., it would seem that equity, as did the chancellor, would refuse to listen further to such demands.

9 C. J. 739, sec. 78; Hickory Investment Co. v. Wright, 452 Miss. 825.

If the Dowlings had forcibly prevented the completion of the building they would have been liable in damages.

Restatement of the Law of Contracts, sec. 346, Annotations.

Time was not of the essence of the contract and delay does not forfeit the contract, but merely entitles the owner to damages.

9 C. J. 790, sec. 132; Clark & Co. v. Miller, 154 Miss. 233.

Argued orally by Gabe Jacobson and G. Garland Lyell, for appellant, and by V. W. Gilbert, for appellee.

OPINION

Griffith, J.

On February 6, 1932, appellants made a contract with one Turner for the construction and completion of a brick veneer residence, the work to be done according to plans and specifications made a part of the contract, and in a good, substantial, and workmanlike manner. The contract price was to be paid in one sum upon the completion of the work. The contractor was without financial means, and the material and money to do the work was furnished by appellee. The contract stipulated that the residence should be completed "at the earliest possible time."

There was no supervising architect, but the work was done under the daily observation of appellants, in the course of which many changes were made in the details of the plans at the instance of appellants, and some work was required by them to be remedied as the building progressed. On June 16, 1932, the contractor tendered the building to appellants as completed according to contract; but appellants were not at all satisfied, and they procured the services of an experienced and reputable architect to make an inspection and report. He reported that the building had not been completed in substantial compliance with the contract, and listed more than fifty items wherein the work was inferior to that required; three or four of these items being of a distinctly serious and definitely unacceptable nature, as will be mentioned later.

Appellants thereupon notified the contractor that the building had not been completed according to contract requirements and that they declined to accept and pay for the work. Appellants were within their rights in rejecting the house at that time, and the chancellor so stated in his opinion.

There was an arbitration provision in the contract, and on June 21, 1932, the contractor requested an arbitration of the matter, stating that the request for arbitration was made in order "that I may comply strictly with the terms of the contract entered into between us and as required by the contract itself." This offer of arbitration was refused by appellants; their reply being that they had already rejected the work, that their rejection was final, and that there remained nothing to arbitrate. In a few days thereafter, appellee sought to adjust the matter with appellants. Appellee persuaded appellants to an interview and to a further inspection of the house in company with another experienced and reputable builder, at which time appellee proposed to employ in behalf of the contractor another competent builder to complete the work, taking care of all the defects theretofore itemized at appellants' instance. Appellants also rejected that proposition, and on July 13, 1932, in response to some further efforts at adjustment, appellants wrote appellee that their decision to reject the house and not to accept it would not be changed.

It was the position of appellants that the work was so inherently defective that the building could not be made to comply with the contract; that to do so it would be necessary to tear down all the work and to rebuild from the ground up. That was their position at the time of the tender in June, and it was explicitly adhered to without variation throughout all the subsequent interviews and communications, and it was their position on the trial of the case.

After the final refusal of appellants in July to consider...