Morris v. Hokosona

• Decision Date: 13 October 1914
• Docket Number: 3784
• Citation: 143 P. 826,26 Colo.App. 251
• Parties: MORRIS v. HOKOSONA.
• Court: Colorado Court of Appeals

143 P. 826

26 Colo.App. 251

MORRIS v. HOKOSONA.

No. 3784

Court of Appeals of Colorado

October 13, 1914

Appeal from District Court, City and County of Denver; Geo. W Allen, Judge.

Action by Harry Hokosona against Harold L. Morris. From judgment for plaintiff, defendant appeals. Reversed and remanded.

W.B Tebbetts and Herbert M. Munroe, both of Denver, for appellant.

Geo. S Redd, of Denver, for appellee.

MORGAN J.

Appeal by the defendant from a judgment on a verdict in favor of the plaintiff, in an action for an unpaid balance on a written contract for the construction of four dams, which the plaintiff alleges he completed in compliance with the contract, with the further allegation that the defendant accepted the work as it progressed, including a second cause of action for some extra work done under an oral agreement. Defendant claims that the dams were not constructed according to the contract and the written specifications attached thereto, and that the dams leaked very much, and did not hold the water, because the contract was not complied with in reference to the excavations required to be made under the dams, and because of insufficient packing of the dirt, denying that he accepted the work as it progressed, claiming damages for failure to perform, and denying liability for the extra work. The judgment was for the unpaid balance of the entire contract price and for the amount claimed for the extra work done by the plaintiff in filling certain holes made in obtaining dirt with which to construct the dams.

Three distinct questions of fact were thus clearly presented by the pleadings, and contested at the trial: (a) Was the contract fully performed, either by actual fulfillment or by acceptance as such? If so, then the plaintiff could recover the amount sued for on the contract. (b) If not so, then was there such a substantial performance as would permit a recovery, on the contract, less such amount as would compensate the defendant for failure to strictly perform? If so, then the plaintiff could recover the amount sued for on the contract, less the amount for such compensation, but, if not so, then the plaintiff could not recover on the contract. (c) The issue as to the extra work. But the jury was instructed: (1) That it should find for the plaintiff for the balance of the entire contract price, if it found that he had substantially performed the contract; (2) if it found otherwise the verdict should be for the defendant; (3) if it found for the plaintiff, it should also allow him such sum for the extra work as the parties had agreed upon. These instructions were incomplete and wholly insufficient to advise the jury in its deliberations.

It seems neither reasonable nor lawful that the plaintiff should be permitted to recover the entire contract price on a mere substantial performance, unless it were found, under proper instruction, that defendant accepted the work, and thereby waived a full performance; nor that the plaintiff should recover for the extra work, unless it were found, under proper instruction, that the new contract was made as plaintiff claimed.

Furthermore, in an action on an entire building contract, claiming full performance and the entire contract price, the court should never instruct the jury that the entire contract price may be recovered on a substantial performance, without a further instruction that, from the entire contract price, such amount must be deducted as will be sufficient to compensate the employer for the failure to fully perform the contract. Anson on the Law of Contract (Huffcut's 2d Am.Ed.) 352, § 366; Idaho Co. v. Colo. Co., 49 Colo. 66, 72, 111 P. 553; Lombard v. Overland D. & R. Co., 41 Colo. 253, 92 P. 695; Charles v. Hallack Lbr. Co., 22 Colo. 283, 43 P. 548; Spence v. Ham, 163 N.Y. 220, 57 N.E. 412, 51 L.R.A. 238; Nolan v. Whitney, 88 N.Y. 648; Pitcairn v. Philip Hiss Co., 113 F. 492, 51 C.C.A. 323; Bishop on Cont. (2d Enlarged Ed.) §§ 1421, 1445; 2 Suth. on Dam. (2d Ed.)§ 711; 6 Cyc. 87, 88.

Anson says:

"366. Substantial Performance at Law. The equitable doctrine of substantial performance has been adopted in common-law actions in many states, and particularly in the adjustment of rights under building contract. If the contractor has acted in good faith and has substantially performed, he will be allowed to recover notwithstanding slight deviations from the contract, but his recovery will be diminished by the amount necessary to compensate for the deficiency. But deviations which are more than slight or trivial, or which are willful, will defeat a recovery. This doctrine of substantial performance applies also to other contracts."

See, also, Phillip v. Gallant, 62 N.Y. 256; Woodward v. Fuller, 80 N.Y. 312; Hattin v. Chase, 88 Me. 237, 33 A. 989; Crouch v. Gutmann, 134 N.Y. 45, 31 N.E. 271, 30 Am.St.Rep.

608; Ashley v. Henahan, 56 Ohio St. 559, 47 N.E. 573.

Furthermore, the court, in such instances, should explain to the jury that substantial performance permitting a recovery on the contract means an attempt in good faith to strictly and fully perform, and is not satisfied unless there has been only slight or inadvertent omissions or departures which have not affected the value of the structure and which are capable of remedy, and for which the employer may be compensated by a reduction of the contract price. See foregoing authorities.

Such right to recover...