Lawrence v. Cunningham

• Decision Date: 28 February 1964
• Citation: 160 Me. 89,197 A.2d 767
• Parties: Philip W. LAWRENCE v. Mary H. CUNNINGHAM (Footer).
• Court: Maine Supreme Court

Page 767

197 A.2d 767

160 Me. 89

Philip W. LAWRENCE v. Mary H. CUNNINGHAM (Footer).

Supreme Judicial Court of Maine.

Feb. 28, 1964.

Charles T. Small, Jr., Bath, for plaintiff.

John P. Carey, Bath, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, and SIDDALL, JJ.

WEBBER, Justice.

The plaintiff contractor alleges full performance of a written agreement and demands the contract price from defendant owner. The defendant asserts that the plaintiff has not performed the contract and did not enter into the agreement or undertake performance in good faith. The defendant by counter claim seeks recovery of the sums advanced by her under the contract, setting forth that the services rendered and materials furnished by the plaintiff are without value.

The matter was heard and decided below by a single Justice, jury waived. He was aided by a view. He found that the plaintiff had substantially performed the contract according to its terms, but made allowance to the defendant for additional and corrective work required in the sum of $343.25 against a total contract price of $3,000. His findings accurately cited Skowhegan Water Co. v. Skowhegan Village Corporation 102 Me. 323, 66 A. 714, in support of the rendition of a properly reduced judgment in a substantial performance case. See also Rockland Poultry Co. v. Anderson, 148 Me. 211, 216, 91 A.2d 478, 480. He gave the defendant proper credit for payment of $600 on account. Defendant appeals.

The situation is somewhat unusual in two respects. The parties were bargaining for the repair of an old and dilapidated house which had been condemned by municipal authorities. Recognizing that the value of the premises was such that the cost of a first class job would be prohibitive, the parties by contract fixed the standard of workmanship to be required. Although nearly all of the work done by the plaintiff is the subject of complaint, the parties agree that their disagreement over the contract requirements pertaining to the repair of chimneys presents the most serious monetary issue between them.

We quote the following excerpts from the contract:

'2. It is agreed that there are to be no major structural changes in the building * * * (exceptions stated--not pertinent), but it is especially understood that there will be no alterations of other existing doors and windows, walls, floors or roof or chimney with the exception of the removal of half of the so-called ell on the west side of the building. * * *

'5. The Repairer is to 'top' the chimney on the ell and 'cap' the other two chimneys with the undersanding that 'capping' means to start at the top and work down and replace as much brick as is necessary to make the chimney functional and structural and sound sound (sic), whereas 'topping' means to remove the entire chimney, at least one foot below the wood structure of the roof. * * *

'12. It is understood and agreed between the parties that these premises were condemned by the City of Bath, that the present condition is dilapidated and that the premises could not possibly be restored change its shape (sic) without the expenditure of many times the contract price and that consequently the Owner is not to exact of the Repairer a standard of workmanship out of proportion to the fact that it is the purpose of this contract to make the premises useable, but not to make premises correspond to the workmanship that would be in the average new or repaired state.' (Emphasis ours.)

It may be noted that during negotiations looking to a possible settlement of the dispute the plaintiff undertook to do some corrective work in the premises but was prevented by the defendant.

In his findings the Justice below summarized the result in these terms: 'It cannot be gainsaid that the result of plaint...