Roseburr v. McDaniel

• Decision Date: 31 January 1921
• Docket Number: 130
• Citation: 227 S.W. 397,147 Ark. 203
• Parties: ROSEBURR v. MCDANIEL
• Court: Arkansas Supreme Court

227 S.W. 397

147 Ark. 203

ROSEBURR v. MCDANIEL

No. 130

Supreme Court of Arkansas

January 31, 1921

Appeal from Conway Chancery Court; Jordan Scllers, Chancellor affirmed.

Decree affirmed.

Strait & Strait, for appellant.

We recognize the rule that a contractor who has contracted to erect a building and who has substantially complied with the plans agreed upon is entitled to recover the contract price less material, unauthorized changes made, or the difference in value of the work done according to the original plans and specifications. The rule applies where the omissions or defects were not intentionally or deliberately made through bad faith. This is an exception to the rule, as McDaniel, by his own statement, showed a wilful intent not to perform the contract in its entirety.

One who holds himself out as a workman impliedly covenants that he will do the work contracted for in a skillful manner. 3 Ark 324; 4 Id. 523. One who undertakes to do certain work for a fixed compensation can not sue for compensation until he has done the work. 3 Ark. 324. A contract must be performed according to the terms of the agreement before a party has any right of action. 28 Am. Dec. 336; 89 Id. 381; 6 R. C. L., par. 331; 17 L. R. A. (N. S.) 231. Where the defects in the work are intentional and not the result of an attempt in good faith to perform the contract, the rule of substantial compliance can not be invoked. 24 L. R. A. (N. S.), p. 327, notes. See, also, 102 Ark. 152; 64 Id. 34. The chancellor erred in his findings as to a substantial compliance with the contract. No claim for lien was ever filed with the clerk. Appellee was not entitled to recover on a quantum meruit or upon the principle of substantial compliance.

J. W Johnston, for appellee.

1. The testimony shows that no part of the work was omitted and only one small defect. The work was substantially done in compliance with the contract, and appellee was entitled to recover the contract price, less the cost of defects. 79 Ark. 278, 506; 9 Cyc. 603.

2. Whether there was a substantial compliance or not was a question of fact for the court. Appellant did not raise the issue, and it is too late to raise it here for the first time. 64 Ark. 305; 80 Id. 384; 82 Id. 260.

3. The findings are sustained by the evidence.

OPINION

MCCULLOCH, C. J.

Appellee is a carpenter by trade and built a house for appellant on the latter's land, under contract for a price to be paid in the sum of eighty-five dollars. The house was constructed, and appellant paid $ 20 on the price, and this is a suit in chancery instituted by appellee to recover the balance of $ 65 alleged to be due, and to enforce a lien on the premises.

Appellant alleged in the answer that the house was not constructed in accordance with the contract. He alleged that the roof and gutters were defective, and that it would cost $ 40 to repair the defects; that appellee had failed to construct a stairway in accordance with the terms of the contract, and that it would cost an additional sum of $ 10 to construct same; that appellee had failed to construct a partition for the rooms upstairs, which would cost $ 50 to do; and that certain other finishing would cost ten dollars.

The issues thus raised by the answer were tried before the chancellor on oral testimony which was conflicting. The testimony introduced by appellant tended to show that the house was not constructed in accordance with the contract that no partition was built to divide the two rooms upstairs, and that the tin work in the...