Elliott v. Caldwell

• Citation: 43 Minn. 357,45 N.W. 845
• Parties: ELLIOTT ET AL. v CALDWELL ET AL.
• Decision Date: 02 June 1890
• Court: Supreme Court of Minnesota (US)

43 Minn. 357

45 N.W. 845

ELLIOTT ET AL.vCALDWELL ET AL.

Supreme Court of Minnesota.

June 2, 1890.

(Syllabus by the Court.)

1. The findings of the referee held justified by the evidence.

2. The doctrine of “substantial compliance” of building contracts does not apply when the omissions or departures from the contract are intentional, and so substantial as not to be capable of remedy, and that an allowance out of the contract price would not give the owner essentially what he contracted for.

3. To entitle a party to recover for part performance or for performance in a different way from that contracted for, his contract remaining open and unperformed, the circumstances must be such that a new contract may be implied from the conduct of the parties to pay a compensation for the partial or substituted performance. The mere fact that the partial performance is beneficial to a party is not enough from which to imply a promise to pay for it. Hence, in the case of a building on land, which the builder fails to complete, or completes in a manner not substantially conforming to the contract, the mere fact that it remains on the land, and the owner enjoys the benefit of it, he having no option to reject it, is not such an acceptance as will imply a promise to pay for it, notwithstanding the non-performance of the special contract.

4. The complaint construed, and held, that the cause of action stated in it is only on the special contract, and not on an implied one, to pay the measure and value price of the work done.Appeal from district court, Hennepin county; HOOKER, Judge.

Welch, Botkin & Welch, for appellants.

Davenport & Thian, for respondents.

MITCHELL, J.

We have carefully read the evidence in this case, and are satisfied that it amply justified all the material findings of fact by the referee. Upon the facts thus found, it is impossible for the plaintiffs to recover in this action. They declare upon a written contract by which they agreed to build for the defendant Jennie Caldwell, according to certain plans and specifications, a dwelling-house for a gross sum. They allege that before they made their bid or executed the contract it was agreed that certain changes were to be made in the plans and specifications, and that they made their bid and entered into the contract with reference to such agreed changes, which were, however, through mistake or inadvertence, never made. They further allege that they have fully performed their contract by constructing the house according to such plans and specifications as thus agreed to be changed, and ask that the written contract (of which the plans and specifications are a part) be reformed so as to conform to the intention and actual agreement of the parties, that they have judgment for the amount of the contract price, and that the judgment be declared a specific lien on the building. The defendants in their answer deny all the facts set up in the complaint as a ground for the reformation of the written contract, which they allege correctly embodies the actual agreement. They also deny that plaintiffs have performed their contract, but allege, on the contrary, that they have fraudulently, and by means of a conspiracy between them and one Jones, the person named in the contract as the supervisor of the construction of the building, made numerous material and substantial deviations and departures from the contract by using different and inferior and defective material, and doing different and inferior work, from that called for in the specifications, so that the house is essentially different from and inferior to the one contracted for. The referee finds that plaintiffs executed the written contract with full knowledge of its contents, and without any mistake or oversight. He also finds that plaintiffs have not completed or constructed the building in substantial compliance with this contract, but have omitted altogether certain things, and have deviated and departed from it in numerous particulars as to the kind and quality of both the materials and the work, which he specifies. Without enumerating these, it is enough for present purposes to say that, taken as a whole, they are not mere slight defects or omissions, which may be remedied without difficulty, so as to give defendants substantially the building they bargained for, but that they are of a substantial nature, which run through the whole work, and are now incapable of correction, and render the house substantially different from and inferior to the one which plaintiffs contracted to build. Jones, the supervisor, was discharged, and a new one appointed December 4th, after the building was up and inclosed, and sheathing, siding, and roof boards on, and the windows in, and the floor joists, floor lining, studding, etc., up. From the referee's description, it appears that at this date the plaintiffs had already made the greater number of...