Mortimer v. Dirks

• Decision Date: 19 February 1910
• Citation: 57 Wash. 402,107 P. 184
• Parties: MORTIMER v. DIRKS et ux.
• Court: Washington Supreme Court

107 P. 184

57 Wash. 402

MORTIMER v. DIRKS et ux.

Supreme Court of Washington

February 19, 1910

Department 1. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by T. W. Mortimer against John L. Dirks and wife. From a judgment for defendants, plaintiff appeals. Appirmed.

Berkey & Cowan, for appellant.

Voorhees & Voorhees, for respondents.

MORRIS J.

Appellant brought this action to recover $793.69, claimed to be due upon a contract for the erection of a house for the respondents. Of the amount claimed $679.31 was alleged to be due under the contract, and the balance was for extras. Respondents answered, denying any liability under the contract or for the extras, and counterclaimed demanding damages in the sum of $771.03 for alleged breaches of the contract, and damages consequential to the breach. Upon a reply being filed, trial was had upon these issues wherein the court found appellant had intentionally violated the terms of the contract in certain of its stipulations, and denied him a recovery. The court also found that respondents had failed to sustain the allegations of their counterclaims and entered its judgment of dismissal both as to the complaint and counterclaims, and plaintiff has appealed. No statement of facts has been sent up, and the case is here only upon the pleadings, findings of fact, conclusions of law, and judgment. The only question then before us is: Do the pleadings and findings of fact sustain the conclusions of law and judgment?

The chief contention of appellant is that respondents having accepted the benefits and fruits of the contract in that they sold the house for $3,500, which under the contract was the price fixed at which the house when completed should be sold and out of the proceeds of such sale the amount remaining due upon the contract to be paid, and the court having found that respondents were not damaged under their counterclaims, the appellant was entitled to recover. This contention cannot be sustained under the findings. It is true, as asserted by appellant and under which theory he bases his right of recovery, that it is a modern rule that substantial compliance with a building contract is all that is required, and that where the contractor has in good faith and honestly sought to comply with its terms, but has failed in some minor respects, his right of recovery cannot be defeated under the contract, but will be offset by the amount required to complete the contract. Some of the cases holding that substantial complance only is required hold that the action is properly brought upon the contract and the amount due thereon is subject to deductions for damages arising from improper performance; while others hold that the contractor is entitled to recover upon a quantum meruit. But whatever be the rule of recovery, the reason for it is that a contractor, acting in good faith and with a determination to do what he has contracted to do, should not suffer if he has, unintentionally and without any negligence in some small matter, departed from the strict terms and detail of his specifications. The rule is for the benefit of the honest, skillful, and prudent contractor, who faithfully endeavors to live up to the terms of his agreement, but through mistake or inadvertence fails in unimportant particulars. Smith v. Gugerty, 4...