Hub Const. Co. v. Dudley Wood Works Co.

• Decision Date: 25 February 1931
• Citation: 274 Mass. 493,175 N.E. 48
• Parties: HUB CONST. CO. v. DUDLEY WOOD WORKS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 493

175 N.E. 48

HUB CONST. CO.

v.DUDLEY WOOD WORKS CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 25, 1931.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by the Hub Construction Company against the Dudley Wood Works Company. Verdict for plaintiff. On defendant's exceptions.

Exceptions sustained.

H. A. Eyges, of Boston, for plaintiff.

Edward M. Dangel, L. E. Sherry, and J. J. Holtz, all of Boston, for defendant.

FIELD, J.

This is an action of contract to recover a balance of $2,023, and interest, for erecting an addition to a building owned by the defendant. The declaration is in three counts, alleged to be for the same cause of action. The first count is upon an account annexed for ‘work and labor performed by the plaintiff * * * in accordance with’ agreements dated, respectively, May 15, May 22, and June 8, 1928, the second count is upon written agreements of those dates, and the third count for ‘substantial performance’ of an agreement made on or about May 15, 1928.

At the trial of the case to a jury there was evidence of a written contract, dated May 15, 1928, for the erection of a building in the city of Boston, and of two modifications thereof in writing, dated May 22, 1928, and June 8, 1928, and evidence that the contract was fully performed on the part of the plaintiff except in the matter of seven alleged deviations therefrom, as to which the evidence appears in the bill of exceptions. Evidence hereinafter referred to was admitted over the objection and subject to the exception of the defendant.

The defendant moved for a directed verdict on each count of the declaration on the ground of variance between allegations and proof and generally on the declaration as a whole and on each count thereof, and requested that the jury be instructed that the plaintiff, if entitled to recover, was ‘not entitled to more than nominal damages in this action.’ The motions and request were denied and the defendant excepted.

The jury, upon questions submitted to them by the judge, found that the plaintiff did not ‘wilfully deviate from the contract,’ but did ‘substantially perform its contract,’ and to the question, ‘How much less, if anything, is the building worth by reason of deviations, if any?’ answered, ‘$300.’ The judge then directed a verdict for the plaintiff in the sum of $1,879.79, which ‘amount was determined by deducting the said $300 from the total amount claimed by the plaintiff as the balance of the contract and then the addition of interest.’ The defendant excepted to this direction of a verdict.

We pass without discussion the question of variance between allegations and proof, for we are of opinion that a verdict should have been directed for the defendant on substantive grounds.

The evidence did not warrant a finding-and the plaintiff does not contend-that the contract was fully performed by the plaintiff, even if slight deviations are overlooked on the principle of de minimis non curat lex. See Lynch v. Culhane, 237 Mass. 172, 175, 129 N. E. 717.

The plainiff seeks, however, to recover as upon a quantummeruit on the ground of substantial performance. In order to prevail on this ground a contractor under a building contract must prove, not only that he substantially performed his agreements, but also that he attempted in good faith to perform them completely (Bowen v. Kimbell, 203 Mass. 364, 370, 371, 89 N. E. 542,133 Am. St. Rep. 302;Hennessey v. Preston, 219 Mass. 61, 63, 106 N. E. 570;Divito v. Uto, 253 Mass. 239, 242, 243, 148 N. E. 456;Reynolds v. Cole [Mass.] 172 N. E. 91, that is, that he had an ‘honest intention to go by the contract’ (Hayward v. Leonard, 7 Pick. 181, 187,19 Am. Dec. 268, see Smedley v. Walden, 246 Mass. 393, 400, 141 N. E. 281) and acted in accordance with such intention. Handy v. Bliss, 204 Mass. 513, 518, 90 N. E. 864,134 Am. St. Rep. 673;Lynch v. Culhane, 241 Mass. 219, 222, 135 N. E. 119. There was no evidence in this case that the deviations from the contract were not intended by the plaintiff. It does not appear that the plaintiff in good faith misunderstood the requirements of the contract or thought that it had complied with them. See Handy v. Bliss, 204 Mass. 513, 519, 90 N. E. 864,134 Am. St. Rep. 673. In the absence of evidence that the plaintiff did not intend to deviate from the strict requirements of the contract, proof was required that deviations were immaterial-that is, so slight as to fall within the rule de minimis (Lynch v. Culhane, 237 Mass. 172, 175, 129 N. E. 717, and cases cited)-or were justified or excused. Divito v. Uto, 253 Mass. 239, 243, 148 N. E. 456.

With respect to at least two deviations from the strict requirements of the contract, the existence of which the plaintiff did not...