In support of this motion appellee cites numerous cases from courts of high authority, which, perforce of precedent, entitle him, we think, to the rehearing prayed for. Johnson v. De Peyster, 50 N.Y. 666; Glacius v. Black, 50 N.Y. 145; s.c.,67 N.Y. 563; Phillips v. Gallant, 62 N.Y. 264; Woodward v. Fuller,80 N.Y. 312; Heckman v. Pinkney, 81 N.Y. 210; Flaherty v. Miner, 123 N.Y. 382; Gallagher v. Sharpless (Pa.), 19 Atl. Rep., 491; Moore v. Carter (Pa.), 23 Atl. Rep., 243; Aetna I. S. Works v. Kossuth Co., 79 Iowa 40.
In some of the New York cases cited, the failures on the part of the builders to comply strictly with their contracts included omissions and defects of greater magnitude than that shown by this record, and yet findings that there had been a substantial compliance were sustained. According to these decisions, there has been a relaxation of the rigid rule exacting strict compliance as a condition precedent to recovery in *Page 224 this class of contracts, "embracing many particulars which it is difficult if not impracticable to comply with with entire exactness"; and it is now the rule, "that where a builder has in good faith intended to comply with the contract, and has substantially complied with it, although there may be slight defects caused by inadvertence or unintentional omissions, he may recover the contract price, less the damage on account of such defects. The defects must not run through the whole, nor be so essential as that the object of the parties to have a specified amount of work done in a particular way is not accomplished." Or, as it is otherwise expressed: "If there has been no wilful departure from the terms of the contract or omission in essential points, and the laborer has honestly and faithfully performed the contract in all its material and substantial particulars, he will not be held to have forfeited his right to remuneration by reason of mere technical, inadvertent, or unimportant omission or defects."
Whether the defects or omissions are substantial or merely technical and unimportant, are uniformly held to be questions for the jury or trial court. In determining whether there has been a substantial compliance, stress seems to have been laid in these cases upon whether the omission or refusal to perform the contract in every detail was willful or not. We are therefore of opinion that the evidence offered by appellee of the circumstances which caused him to omit cutting the door from the sitting room to cellar was competent upon the question of his good faith in attempting to comply literally with the terms of his contract, and to show that there was nothing willful in the omission. The assignment heretofore sustained to the action of the court in admitting this evidence will consequently be now overruled.
In view of the precedents above cited, as already indicated, we are of opinion that, inasmuch as the court submitted the issue to the jury whether or not there had been a substantial compliance on the part of appellee with the terms of his contract, and inasmuch as that was peculiarly an issue for the jury, we would not be warranted in disturbing the verdict. It was for them to pass upon the motives and conduct of appellee, and determine whether or not, under all the circumstances, the omission complained of was a trivial or unimportant one.
In this connection, we call attention to the very general character of the assignment (sixth) raising this question, both as found in the brief and in the motion for a new trial, reading: "Because the evidence also showed that plaintiff had not completed said building according to the plans and specifications of his contract." We doubt if this assignment is sufficiently definite to require us to pass upon the sufficiency of the evidence upon this particular point.
The verdict, then, finding substantial compliance, warranted a recovery for the contract price; and if, on account of a slight and unintentional omission appellant sustained damage, it was incumbent on him to diminish the amount of the recovery by alleging and proving that fact. As was said in the case of Heckman v. Pinkney, supra, "the defendant *Page 225 might have been entitled to an allowance on account of the defective performance, if he had proved and claimed what it would have cost to complete the contract strictly according to its terms; but he did not give such proof, and hence there was no basis for such allowance."
There was no error in refusing to charge that plaintiff could not recover without showing that he had paid off all the claims of carpenters employed by him in the construction of the building; for it was not the contract that he was to pay these claims, but only to settle with the holders thereof, which he claimed to have done.
We find no merit in the other assignments.
The rehearing will therefore be granted, and the judgment affirmed.
While this conclusion has not been reached without difficulty, yet, as it is supported by precedent and seems to accord with substantial right, and will hasten the termination of the litigation, we feel better satisfied with it than with the reversal heretofore reluctantly entered.
Rehearing granted and judgment affirmed.