The court charged the jury: "If, on the other hand, the plaintiff had shown that he has substantially performed the contract according to its terms, he would be entitled to recover the balance which you may find to be due on the contract price and which, it is agreed in such event, would be one hundred and ten dollars. And he would also be entitled to recover the reasonable value of the extras which he has shown he performed. If, again, you should find that the services rendered by the plaintiff, under the contract, were not in entire conformity with it, but that the deviations therefrom were not wilful and were not substantial and that the defendant has availed himself of and has been benefited by such labor, the plaintiff, in such event, would be entitled to receive compensation therefore, the amount of such compensation depending, as I have already said, upon the extent of the benefit conferred, having reference to the contract price for the entire work. And if only some additions to the work are required to finish it, according to the contract, or if the defects, if you should find there were any, may be remedied at a reasonable expense, you should *Page 188 deduct from the contract price the sum which it would cost to complete it. If you should find a verdict for the plaintiff, you will add to the sum to which you think he is entitled, interest at the rate of six per cent. per annum, from the date of this suit, which is August 15th, 1910, that being the date of demand, so far as the evidence discloses, to the present time."
The first count being based upon the special contract, and being the only count relating to the matters covered by the contract, the plaintiff was bound to prove performance according to its terms, for such performance was a condition precedent to his recovery. The court, in stating the issues to the jury, so told them. This was correct.
Of course, slight, trivial, inconsequential, or inconsiderable deviations from literal performance of a building contract, if not wilful, will not prevent a recovery under the contract, since such a performance is complete performance. The measure of recovery in an action on such a contract is the face of the contract, less the amount required to compensate for the inconsequential deviations.
The charge above quoted permitted a recovery if the jury found facts bringing this case within the exception stated in Pinches v. Swedish Lutheran Church,55 Conn. 183, 10 A. 264.
While a contractor who has rendered service and furnished materials under a special contract, but not in entire conformity to it, may recover provided that the deviation from the contract was not wilful, and the other party has availed himself of, and been benefited by, such labor and materials under circumstances sufficient to raise an implied promise to pay for them, his action cannot be upon the special contract, but upon a quantum meruit. His complaint must be adapted to his cause of action. *Page 189
Under the first count of the complaint the plaintiff claimed to recover $160. Under the second count, $58.16, less $50 paid, or $8.16. So that the total recovery under the complaint was limited to $168.16, with interest, which the court limited from August 15th, 1910, in all, $175.14. The recovery was for $153.95.
The opinion holds that even though the court's instruction upon the exception in Pinches v. SwedishLutheran Church, 55 Conn. 183, 10 A. 264, was wrong, it was harmless because the recovery shows that the jury must have found full performance. But a recovery twelve per cent. less than the possible recovery is not an inconsiderable deviation, and in no sense can be regarded as full performance, nor has such a deviation been considered substantial performance in those jurisdictions where the so-called doctrine of substantial performance prevails.
The recovery clearly indicates that the jury did not find full performance, but did find under the exception of Pinches v. Swedish Lutheran Church, 55 Conn. 183,10 A. 264, which was an issue submitted to the jury outside the pleadings. But it is said the charge of the court limited the recovery under the first count to $110, stating that $50 was admittedly paid on the contract, and that this sum, with the extras of the second count of $8.16, with interest on these sums from August 10th, 1910, to the date of judgment, May, 1911, was the basis of the recovery. If this were so, the limit of the recovery was $122.92, and the judgment, $153.95, showing some erroneous processes of the jury and a result which should not be allowed to stand.
It seems incontrovertible that the jury found that full performance had not been made, as the twelve per cent. difference between the recovery asked and the verdict rendered shows, and they rendered a verdict on a quantum meruit, as the court told them they might, *Page 190 although that issue, so far as the recovery on the contract under the first count was concerned, was not in the case.
I think there is error.