Handy v. Bliss

• Decision Date: 02 February 1910
• Citation: 90 N.E. 864,204 Mass. 513
• Parties: HANDY v. BLISS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 513

90 N.E. 864

HANDY v. BLISS.

Supreme Judicial Court of Massachusetts, Barnstable.

February 2, 1910

COUNSEL

Wm A. Morse and Francis J. Geogan, for plaintiff.

Ossian Ray, for defendant.

OPINION

KNOWLTON C.J.

This is an action to recover a balance due a contractor for the construction of a building. One of the counts was upon an account annexed, which opened to the plaintiff the right of recovery upon a quantum meruit for labor and materials. The defendant requested, among others, the following instructions:

'(1) That if the jury believe that pages 1 and 2 of the specifications entitled 'General Conditions,' were a part of the contract, there could be no recovery on the ground of substantial performance.

'(2) If the jury shall be of the opinion that pages 1 and 2 of the specifications, entitled 'General Conditions,' were not a part of the original contract, then that where a payment is due only on the completion of the contract as here, the plaintiff must show substantial completion; that is, if the plaintiff knowingly omitted to do certain things required by the contract, and they are of such a nature that the work is complete in all material respects, then the contractor may recover the contract price, less what it would necessarily cost to complete the work; but the performance, so far as it goes, must be in exact compliance with the terms of the contract; that to constitute substantial performance, a general adherence to the plans and specifications is not sufficient, the builder not being entitled to willfully or carelessly depart from minute details, or to leave his work incomplete in any material respect; that the builder is not entitled to make changes that are so substantial that an allowance out of the contract price will not give the owner substantially what he contracted for, or to omit work that cannot be done by the owner except at great expense or with great risk to the building.

'(3) That this doctrine of substantial performance does not apply where omissions by the builder were intentional, or where the contract is to be performed to the satisfaction of the owner.'

The law relative to the matters mentioned in these requests has been considered in different cases, and it was discussed at length in Dodge v. Kimball, 203 Mass. 364, 89 N.E. 542. To entitle the plaintiff to recover in a case of this kind there must be an honest intention to perform the contract and an attempt to perform it. There must be such an approximation to complete performance that the owner obtains substantially what was called for by the contract, although it may not be the same in every particular, and although there may be omissions and imperfections on account of which there should be a deduction from the contract price. It is not necessary that the work should be complete in all material respects, nor that there should be no omissions of work that cannot be done by the owner except at great expense or with great risk to the building. There may be omissions of that which could not afterwards be supplied exactly as called for by the contract without taking down the building to its foundations, and at the same time the omission may not affect the value of the building for use or otherwise, except so slightly as to be hardly appreciable. Notwithstanding such an omission, there might be a substantial performance of the contract.

There is no reason why the doctrine of substantial performance should not apply where the contract is to be performed to the satisfaction of the owner, according to the usual meaning of this expression as applied to contracts of this kind, namely, to his satisfaction, so for as he is acting reasonably in considering the work in connection with the contract. This doctrine does not apply where the builder intends not to perform the contract. But an intentional omission to do certain things called for by the contract, if he believes that they are not called for, and intends in good faith to do all that he has agreed to do, does not prevent the application of the doctrine. These requests for rulings were rightly refused.

Another request, numbered 3, relates to the requirements that the work should be done 'to the entire satisfaction and approval of the owner.' The question is whether this language means that the owner must act reasonably in determining whether the work is satisfactory, or whether, if he acts in good faith, he may decline to be satisfied and refuse his approval upon a whimsical and unreasonable exercise of personal taste or prejudice. Sometimes it is difficult to determine which construction should be given to a contract of this kind. Cases in which the language has been given the former meaning are Hawkins v. Graham, 149 Mass. 284, 21 N.E. 312, 14 Am. St. Rep. 422; Noyes v Eastern Accident Ass'n, 190 Mass. 171, 79 N.E. 665; Lockwood Mfg. Co. v. Mason Regulator Co., 183 Mass. 25, 66 N.E. 420. See C. W. Hunt & Co. v. Boston Elev. Ry. Co., 199 Mass. 227, 85 N.E. 446; Cashman v. Proctor, 200 Mass. 272, 86 N.E. 284; Webber v. Cambridge Sav. Bank, 186 Mass. 314, 71 N.E. 567. Contracts which are given the...