Ocean Ridge Development Corp. v. Quality Plastering, Inc., 70-464

• Decision Date: 07 April 1971
• Docket Number: No. 70-464,70-464
• Citation: 247 So.2d 72
• Parties: OCEAN RIDGE DEVELOPMENT CORPORATION, Appellant, v. QUALITY PLASTERING, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 72

247 So.2d 72

OCEAN RIDGE DEVELOPMENT CORPORATION, Appellant, v. QUALITY PLASTERING, INC., a Florida corporation, Appellee.

No. 70-464.

District Court of Appeal of Florida, Fourth District.

April 7, 1971.

Rehearing Denied May 11, 1971.

Howard A. Setlin, of Copeland, Therrel, Baisden & Peterson, Miami Beach, for appellant.

Frank E. Booker and Luther Taylor, of Ryan, Taylor & Law, North Palm Beach, for appellee.

REED, Judge.

This is an appeal from a final judgment of the Circuit Court of Palm Beach County entered on a jury verdict for the plaintiff, Quality Plastering, Inc. The appellant, Ocean Ridge Development Corporation, was the defendant below.

The issues were made by the amended complaint, the answer thereto, and a counterclaim. The amended complaint was filed on 2 October 1969 and it contained two counts. The first count alleged that the plaintiff and the defendant entered into a written contract by which the plaintiff was to provide defendant the labor and material necessary for plastering a construction project known as 'Paget House' for the total sum of $24,820.00. The amended complaint alleges that the plaintiff performed the contract and that there was due and owing to it on the contract a balance of $4,820.00.

Count II of the amended complaint alleges a similar contract between the plaintiff and the defendant under which the plaintiff was to plaster a building known as 'King's Bay House' for the sum of $60,000.00. The plaintiff alleged that it had fully performed and was owed a balance on the contract of $18,500.00.

The answer admits the existence of the contracts, but denies performance. By a two-count counterclaim the defendant alleged that the plaintiff breached the contract to plaster Paget House in that the plaintiff failed to perform the work properly and delayed the job--all of which necessitated repairs and caused damage to the defendant. Count II of the counterclaim alleges the exact same defaults with respect to the plaintiff's contract on the other project, King's Bay House. The counterclaim demanded damages in an amount in excess of $15,000.00.

The cause was tried before a jury and a verdict for $21,545.00 was returned in favor of the plaintiff.

At the charge conference the defendant requested the following instruction:

'The Court instructs you that where recovery upon a contract is claimed which requires full performance by plaintiff, recovery thereon cannot be sustained in the absence of proof of substantial performance by the plaintiff by a preponderance of the evidence.'

The trial court refused this instruction.

Defendant's motion for new trial was denied. The motion for new trial addressed itself among other things to the failure of the trial court to give that instruction on substantial performance. With respect to this failure the trial judge said in his order denying the motion for new trial:

'The Defendant's motion, served February 27, 1970, for new trial is denied. The Court is of the view that the error, if any, was harmless in failing to give the Defendant's request for a charge on substantial performance in view of the uncontradicted testimony that the Plaintiff has substantially performed its contract. * * *'

As stated by the appellant, the first point on appeal is:

'Whether the trial judge erred in failing to instruct the jury on the doctrine of substantial performance.'

Where a construction contract has been substantially but not fully performed, the promisee may recover the contract price, but the promisor has a correlative right to recover damages, caused by the failure of the promisee to render full performance. Carr v. Stockton, 1922, 84 Fla. 69, 92 So. 814 (syllabus by the Court, headnote 2); Poranski v. Millings, Fla.1955,82 So.2d 675, 678; 17 A C.J.S. Contracts § 509. Normally where the promisee brings an action to recover the contract price, the promisor's right to damages for the failure of the promisee to fully perform the contract should be asserted by a counterclaim as was done here. Appropriate verdicts should be submitted to the jury and a net judgment entered by the court after the verdicts are received. See 3A Corbin on Contracts § 709 and RCP Rule 1.170(c), 30 F.S.A.

Clearly the doctrine of substantial performance applied to the present case under the theory of the amended complaint and the facts in evidence. The failure of the trial court to give the instruction, however, is not reversible error for two reasons.

The first reason is that the failure was harmless error.

Substantial performance is that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee the full contract price subject to the promisor's right to recover whatever damages may have been occasioned him by the promisee's failure to render full performance. See 3A Corbin on Contracts § 702 et sequi. Whether or not there has been substantial performance is normally a question of fact for the trier of fact to resolve based on all the relevant evidence. In our particular case, however, the evidence was sufficiently clear that the issue of substantial performance could have been withdrawn from the jury and determined in the plaintiff's favor as a matter of law. The defendant's own expert witness, William Lee Clark, testified in effect that the work in question was 99% Complete when the plaintiff left the job site. Mr. Clark was a plastering contractor whom the defendant had hired after the plaintiff left the job to do patch work and minor repairs. Since Mr. Clark was the defendant's own witness, the defendant should be bound by his testimony. Union Bus Co. v. Matthews, 1939, 141 Fla. 99, 192 So. 811.

The second reason why the failure to give the instruction is not reversible error is that the error, if any, was invited. The following colloquy between counsel and the trial judge occurred during the charge conference:

'THE COURT: $7,762.66. The defendant concedes that amount is owed?

'MR. SETLIN (attorney for defendant): Yes, Your Honor.

'THE COURT: On the counterclaim?

'MR. SETLIN: Only on our counterclaim.

'THE COURT: I don't understand that. You are getting too profound for me.

'MR. SETLIN: Your Honor, as I see it, and I believe he may have carried his burden, Your Honor says there is at least enough evidence. In order to prove his claim he has a burden also. He has a burden to prove substantial performance, isn't that true?

'MR. TAYLOR (plaintiff's attorney): We proved our burden of substantial performance.

'MR. SETLIN: If he didn't prove that, Your Honor, the law says he is not entitled to a penny. But once he has proved substantial performance, then the contract provisions come into play, and that says that if you have not...