Upon the trial of this action the defendants claimed that the plaintiff could not recover, for the reason that the contract had not been entirely completed. The overruling of this claim is the first assigned error. The broad claim thus made was clearly not well founded, since it applied as well to work done outside the contract as to that which was covered by it. For this reason alone the assignment of error might be dismissed. If, however, the defendants be given the benefit of the claim limited, as it was perhaps intended to be, to the plaintiff's demand arising from the contract, it was in that form properly overruled. It is to be observed that the claim was made generally and without regard to any distinction between the general and special counts. No claim based upon such a distinction was made, and none is presented in the assignments of error. We have, therefore, no concern with any question not involved in the plaintiff's right of recovery under the complaint. If the court was technically in error in the form in which its judgment was rendered, the judgment will not for that reason be set aside now.Jones Hotchkiss v. Davenport, 74 Conn. 418, 421,50 A. 1028.
The court finds that the contract was substantially performed with the exception of a driveway, and that the work upon it had not been finished, for the reason that the defendants had prevented its completion. A contractor may recover when the other party has prevented performance.Valente v. Weinberg, 80 Conn. 134, 138,67 A. 369; Thompson v. Chotzianoff, 80 Conn. 717, 68 A. 978. A contractor who has substantially, although not exactly, performed his contract, may, under circumstances like those here presented, recover. It does not appear that the plaintiff was guilty of wilful default; and that the defendants have appropriated the results of the plaintiff's labors, although not expressly found, is so necessarily implied in *Page 614 the judgment under the common counts that we ought to so assume. Jones Hotchkiss v. Davenport, 74 Conn. 418,420, 50 A. 1028. The rule by which the amount of a contractor's recovery, under the circumstances enumerated, is arrived at is well settled, and appears to have been followed in this case; but that question is not presented by the reasons of appeal, which deal only with the right of recovery generally. Jones Hotchkiss v. Davenport,74 Conn. 418, 420, 423, 50 A. 1028.
The second assignment of error embodies the proposition that there could be no recovery because the contract had not been substantially completed. The single matter in which there had not been substantial performance furnished, as we have already seen, no obstacle to recovery.
It is next charged that the court erred in its ultimate conclusion that there had been a substantial completion of the contract. The question thus determined was one of fact, and there is nothing in the finding to indicate that the court's conclusion was not justified. West v. Suda,69 Conn. 60, 63, 36 A. 1015.
The remaining reasons of appeal are not pursued in the brief of counsel.
There is no error.
In this opinion the other judges concurred.