Perryman v. Sims

• Decision Date: 21 February 1974
• Docket Number: No. 733,733
• Citation: 506 S.W.2d 753
• Parties: W. C. PERRYMAN, Appellant, v. Earlie L. SIMS, Appellee.
• Court: Texas Court of Appeals

Page 753

506 S.W.2d 753

W. C. PERRYMAN, Appellant, v. Earlie L. SIMS, Appellee.

No. 733.

Court of Civil Appeals of Texas Tyler.

Feb. 21, 1974.

Rehearing Denied March 21, 1974.

John W. Key, Jr., Athens, for appellant.

No counsel for appellee on appeal.

MOORE, Justice.

Plaintiff, Earlie L. Sims, a tile contractor, instituted this suit against defendant, W. C. Perryman, to recover the sum of $1,819.10 for the balance allegedly due upon an oral contract for certain tile work performed in remodeling defendant's residence, and in the alternative sought a recover in quantum meruit. Plaintiff prayed for a recovery of the debt; foreclosure of the statutory mechanic's and materialman's lien on the property in question; and for a reasonable attorney's fee. Defendant denied liability alleging that the work had not been performed in a good and workmanlike manner and prayed for an off-set in the amount of $1,242.33. After a trial by jury, the trial court entered judgment for the plaintiff in the amount of $1,207.55, together with attorney's fees in the amount of $400.00, and ordered a foreclosure of the mechanic's and materialman's lien. After defendant's motion for new trial was overruled, he perfected this appeal. The parties will be hereinafter referred to as they were in the trial court.

The case was submitted to the jury on a charge containing six special issues. In response to the special issues the jury made the following material findings, to-wit: (1) plaintiff substantially performed his contract, (2) the agreed contract price for the work was $2,918.50, (5) the work performed by the plaintiff was not done in a good and workmanlike manner, and (6) the cost of correcting the defects resulting from plaintiff's failure to complete the work in a good and workman like manner amounted to the sum of $692.95.

By his pleadings, the defendant admitted the work was performed upon an oral contract and makes no complaint of the jury's finding on Special Issue No. 2 establishing that the agreed contract price amounted to $2,918.50. It is admitted by both parties that defendant advanced the plaintiff the sum of $1,018.00 on the contract and is therefore entitled to a credit of such amount. Neither party makes any complaint of the jury's verdict in response to Special Issue No. 6 finding that the cost of correcting the defects caused by plaintiff's failure to complete the work in a good and workmanlike manner amounted to $692.95. Thus, after deducting the cost for repairing the defects and the amount already paid from the contract price, the trial judge concluded that under the verdict plaintiff was entitled to recover the sum of $1,207.55 in damages for breach of the contract.

Defendant seeks a reversal by four points of error. By his first and fourth points he seeks a reversal on the ground that the jury's finding in response to Special Issue No. 1 (that plaintiff substantially performed the contract) is contrary to the great weight and preponderance of the evidence.

In connection with Special Issue No. 1, the trial court gave the following explanatory instruction:

'You are instructed that the term 'substantial performance' means a performance of all important particulars, and permits only such omissions or deviations from the contract as are inadvertent and unintentional or not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and reconstruction.'

In Atkinson v. Jackson Bros., 270 S.W. 848, 38 A.L.R. 1377 (Tex.Com.App., 1925), the court held that the rule of 'substantial performance' with respect to building contracts is recognized in this state. The opinion recites the general rule as expressed in Anson on Contracts as follows:

"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 contracts. 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."

The Commission of Appeals went on to say:

'To constitute substantial compliance the contractor must have in good faith intended to comply with the contract, and shall have substantially done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot, without difficulty, be accomplished by remedying them. Such performance permits only such omissions or deviation from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and reconstructing.'

Plaintiff testified that he completed the contract in accordance with the agreement. Defendant testified that the contract had not been complied with, and offered the testimony of two expert witnesses who testified that the quality of the work was 'unacceptable' or 'sub-standard.' In rebuttal plaintiff produced two non-expert witnesses who testified that the work appeared to them to be satisfactory. Defendant insists that the testimony of the expert witnesses shows that the work performed by plaintiff was worthless, hence he argues that the finding that the contract was substantially performed is contrary to the great weight of the evidence. We do not agree. The expert testimony, as we view it, merely relates to the quality of the work.

The fact issue propounded to the jury in Special Issue No. 1 was not whether the work was performed in a good and workmanlike manner, but rather whether the work was so defective that it could not be remedied without doing material damages to the other parts of the building. The testimony of the experts does not, in our opinion, show that the work was worthless. There is no evidence that the deviations or omissions were not...