Glazer v. Schwartz

• Decision Date: 09 June 1931
• Citation: 176 N.E. 613,276 Mass. 54
• Parties: GLAZER v. SCHWARTZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 54

176 N.E. 613

GLAZER

v.SCHWARTZ.

Supreme Judicial Court of Massachusetts, Suffolk.

June 9, 1931.

Appeal from Superior Court, Suffolk County; Whiting, Judge.

Suit by Barney Glazer against Sally Schwartz, wherein defendant filed an answer in nature of a cross-bill. From a decree dismissing the bill and denying relief to defendant, both parties appeal.

Affirmed in so far as plaintiff's bill was dismissed, and otherwise reversed and remanded.S. B. Stein, of Boston, for plaintiff.

J. T. Pugh, of Boston, for defendant.

CARROLL, J.

This is a suit in equity to enforce a mechanic's lien under G. L. c. 254, for labor and material furnished under a written contract in the construction of a dwelling house and garage. The suit is based on the contract. The defendant in her answer denied performance of the contract and sought affirmative relief for the damages sustained. The case was heard by a master. In the superior court an interlocutory decree was entered confirming the master's report ‘except the finding * * * that ‘There was a good intention to perform the contract and a substantial performance of it,’ and the finding in favor of the plaintiff.' A final decree was entered dismissing the plaintiff's bill and denying relief to the defendant. Both parties appealed from the interlocutory and final decrees.

The contract price was $14,700, of which $13,000 has been paid. The work was to be done to the satisfaction of the defendant. The master found that the plaintiff failed to comply with the specifications in not supplying weather strips on the cellar door and cellar and attic windows, a screen door for the cellar, leaders to enter into dry wells, in setting the garage too low, in improper grading in the use of hardware not according to specifications, by supplying doors of material different from the contract, and in other details. Three weeks before the contract was completed the defendant occupied the house. A short time thereafter a large crack appeared in the living room ceiling. The master found this was a serious defect that could have been prevented by good workmanship; that, although the ceiling was resurfaced, the crack may appear and the ceiling may have to be done over. The most serious departure from the contract was the plaintiff's failure to supply a Cabot quilt. This quilt, a specially prepared heavy paper filled with dry eel grass, was to be put on underneath the outside finish of the house for the purpose of insulation. According to the specifications the Cabot insulated quilt, single ply, over tar paper, was to cover all outside walls. The plaintiff found some difficulty in handling the Cabot quilt and after covering a little more than half the house with it, in substitution, he applied two layers of tar paper. The master found that, although the plans and specifications were not complied with, plaintiff intended to perform; that there was a substantial performance of the contract, and the defendant, as a reasonable person, should be satisfied. It appears from the report that the default of the plaintiff in failing to supply the Cabot quilt was voluntary and he is not excused from this default because of his inexperience.

[1] From the subsidiary findings of the master the judge was right in deciding that the plaintiff intentionally failed to comply with the contract, that his default was willful. Arcisz v. Pietrowski, 268 Mass. 140, 146, 167 N. E. 298;Robert v. Perron (Mass.) 169 N. E. 489. The plaintiff's bill is based on the contract alone and not on a quantum meruit. To recover on a contract there must be complete performance. The proof must establish performance of the contract. To recover on the contract it is not enough to show that the plaintiff acted in good faith and substantially performed the agreement. Allen v. Burns, 201 Mass. 74, 87 N. E. 194;Bowen v. Kimbell, 203 Mass. 364, 370, 371, 89 N. E. 542,133 Am. St. Rep. 302;Cutter v. Arlington Construction Co., 268 Mass. 88, 92, 167 N. E. 266.

Assuming that the plaintiff should be allowed to amend so that the pleadings and proof may correspond, see Buchholz v. Green Brothers Co. (Mass.) 172 N. E. 101, we consider what his rights would be under the quantum meruit.

One who in good faith substantially performs his contract may recover on a quantum meruit, Cutter v. Arlington Construction Co., supra; Reynolds v. Cole (Mass.) 172 N. E. 91, the sum recovered being the contract price, less ‘the amount by which the value of the house as left by the [builder] fell short of what that value would have been if the contract had been exactly performed.’ Pelatowski v. Black, 213 Mass. 428, 430, 100 N. E. 831, 832;Moulton v. McOwen, 103 Mass. 587;Walsh v. Cornwell (Mass.) 172 N. E. 855. See Handy v. Bliss, 204 Mass. 513, 519, 90 N. E. 864,134 Am. St. Rep. 673. What amounts to substantial performance of a building contract is to be determined in reference to the entire contract and what has been done and omitted to be done under it, Bowen v. Kimbell, supra, and to recover under a quantum meruit the owner must obtain substantially what was called for by the contract. Lynch v. Culhane, 237 Mass. 172, 129 N. E. 717. But where the default is wilful there can be no recovery either on the contract or on a quantum meruit. Bowen v. Kimbell, 203 Mass. 364, 371, 89 N. E. 542,133 Am. St. Rep. 302;Mark v. Stuart-Howland Co., 226 Mass. 35, 43, 115 N. E. 42, 2 A. L. R. 678; Lynch v. Culhane, supra; Smedley v. Walden, 246 Mass. 393, 400, 141 N. E. 281;Divito v. Uto, 253 Mass. 239, 243, 148 N. E. 456;Cobb v. Library Bureau, 268 Mass. 311, 316, 167 N. E. 765;Hub Construction Co. v. Dudley Wood Works Co. (Mass.) 175 N. E. 48.

The plaintiff intentionally failed to fulfill the contract by breach of its substantial stipulations, especially in failing to furnish the Cabot quilt, Divito v. Uto, supra; Cobb v. Library Bureau, supra, and in matters which could not be overlooked as trivial, Mark v. Stuart-Howland Co., supra; Lynch 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 assume in favor of the defendant that in a proceeding under G. L. c. 254, to enforce a mechanic's lien, she may obtain a decree for damages although the plaintiff cannot recover. The plaintiff does not argue that there is no jurisdiction in this proceeding in equity to grant affirmative relief to the defendant. As stated in Martin v. Murphy, 216 Mass. 466, at pages 468, 469, 103 N. E. 930, 931: ‘If equity acquires jurisdiction for one purpose, it will to avoid multiplicity of suit settle all matters within the pleadings connected with the principal controversy.’

It was found by the master that the defendant's damages were the amount by which the building, as left by the plaintiff, fell short of what the value would have been if the contract had been exactly performed. The master estimated this amount at $500. He also allowed the defendant $200 for certain materials which the plaintiff failed to supply. The contract price was $14,700 of which $13,000 had been paid, leaving a balance of $1,700, and as the value of the house as it was...