Nees v. Weaver

Fairchild, J.

Performance in the true spirit and meaning of the contract and intention of the parties is expected in the law. While the strict'general rule requiring complete performance of an entire contract has been relaxed in relation to building contracts, still a good-faith effort to perform and substantial compliance with the terms of the contract must exist before recovery can be had. The contractor engaging to build a building or to put on a roof under an agreement constituting an entire contract must discharge his obligations at least to the point of substantial performance or lose his right to collect under his contract. Partial completion, falling short of substantial performance, except in an action to recover quantum meruit, when proper, may defeat all his claim and may result in a judgment against him. To recover upon an uncompleted entire contract on the claim of having substantially, but not fully, complied with its terms, the contractor must have made a good-faith effort to perform and satisfied substantially the promises and agreements made by him. But where the work done does not meet the requirements of the specifications in substantial, as distinguished from slight, respects because of the negligence and fault of the contractor, the work done cannot be held to be the result of a good-faith effort to perform or its equivalent. Cases upholding this rule and treating with the substantial-performance doctrine as an exception to the strict rule of law requiring complete performance were considered in Manthey v. Stock, 133 Wis. 107, 113 N. W. 443. Several were reviewed, and it was there observed that, as often said, “such relaxation from the strict rule governing entire contracts must be accorded with great caution.” This was said in recognition of the right one has in building to choose for himself, to contract for something which exactly satisfies that choice, and not to be compelled to receive something else. Fischer v. Schumacher, 207 Wis. 10, 238 N. W. 801; Manning v. School District, 124 Wis. 84, 102 N. W. 356.

A good-faith effort to perform and substantial performance by respondent must exist before recovery of the contract price, less such deductions as equal the cost of completing the work, can be had under the contract. It has been determined in this case that respondents did not perform the work of putting on the roof in accordance with the specifications in the written agreement, and that the work was not done “in a first-class manner.” That finding was made by the court upon the undisputed evidence. It is not questioned here. The result of the verdict is also that there was no perform-anee that substantially complied with the contract. In his instructions to the jury on the question relating to the cost of completing the contract, the learned trial judge said:

“Here you will consider the evidence and determine to what extent the plaintiffs failed to construct the roof in the manner provided in the» contract, Exhibit One, and then you will determine what it would reasonably cost to remedy the defects so as to make the roof substantially conform with the contract.”

The finding of the jury consequently amounted to a determination that approximately one fourth of the entire contract price would be required to> pay for advancing the work to a point where it might be claimed that a substantial performance existed. The appellant would still be entitled to' a complete performance and to have the expense necessary to complete the roof added to' his credits. This leaves too wide a margin to- bring this case within the rule applied where the difference between the work contracted for and the work performed is slight enough so that substantial performance may be said to exist. Manthey v. Stock, supra; Crouch v. Gutmann, 134 N. Y. 45, 54, 31 N. E. 271; Mitchell v. Williams, 80 App. Div. 527, 80 N. Y. Supp. 864. Substantial performance lacking, it is not necessary to consider whether a good-faith effort to' perform was made by respondents.

Because of failure to perform substantially, respondents are not entitled to recover even the reasonable value of their work and materials unless they show an appropriation or use amounting to an acceptance thereof by the appellant. The case was tried on the theory of substantial performance, but because of the conclusion reached on that issue, the next question is whether or not the appellant has done anything to warrant a finding of acceptance, use, or appropriation by him of the work or material left by respondents upon the premises. The evidence offered does not deal directly with values. The price for the roof was to be $325. One witness said it would cost $200 to complete the work. Another testified that only $75 would be required. The jury was of the opinion that $75 would be necessarily expended in bringing the work up to substantial performance.

We do not deem it necessary to return the case for amendment of pleadings and retrial on the issue arising out of a claim in quantum meruit. The action could not be sustained on that theory, not so much because of any infirmity in the proofs of value of work and material, as because there is no showing of acceptance and use. The appellant vigorously protested against the character of the work done as soon as the defects were observed. It appears that when respondents were ready to leave the premises, having represented that the job was finished, appellant instructed his cashier to' make out a check in full payment and to deliver it when the architect said the work was done as agreed. Objections were made. It was the architect who- testified that the cost of completing the roof after the respondents left it would be $200. The letter set out in the statement of facts is the summation of several conversations. In view of the existing defects and failures enumerated in the letter, most of which were admitted or proved on the trial, this case is ruled by Manthey v. Stock, supra.

Actual acceptance by appellant cannot be claimed under the evidence, nor is one to be implied. To recover on quantum meruit or quantum valebat on a theory of unjust enrichment, in the absence of substantial performance, acceptance of the work for which recovery is sought must be something besides keeping and using where there is no opportunity to return what has been received. A contractor cannot enter upon the premises of another to perform a contract, ignore its terms, and clumsily or carelessly construct a roof falling far short even of a “substantial performance” and impose upon the owner the responsibility of choosing between being charged with the use and acceptance of the roof or going to the expense of removing it. Appellant had the right to' use his building, and the breach of contract by respondents could not put upon him the alternative of abandonment of the building or removal of the roof.

The counterclaim was for damages to appellant’s property caused by the respondents. The question submitted to the jury was : “Did the waters, which damaged or discolored the walls of defendant’s garage building, leak through and onto such walls because the roof was not put on in the manner provided in the contract?” The instruction to' the jury was an interpretation of this question, and called upon the jury to fix the damages claimed by the appellant because of the leaking resulting from the acts of respondents. The jury found the damages to be $75. That amount is not to be recovered as damages for breach of contract by the respondents, but. is a recovery for the damages wrongfully caused by them to appellant’s building.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment dismissing the plaintiffs’ complaint, and awarding defendant the damage on the counterclaim fixed by the jury.