I concur in the result and with the reasoning of the opinion, except in the particulars herein discussed. The complaint alleges that the plaintiff furnished materials and rendered services in the construction of defendant's building *Page 295 under an agreement, made a part of the complaint, which were reasonably worth $18,573.72, and $13,616.58 represents a balance due on the contract as provided therein.
The complaint does not allege in terms that the plaintiff completed the contract. Other allegations necessary under the statute in a case praying for the foreclosure of a mechanic's lien are found in the complaint. The opinion holds that the allegations of this complaint are sufficient to support a judgment of foreclosure "whether it be that the plaintiff performed its contract, or substantially performed it, or was wrongfully prevented by the defendant from performing it."
Healy v. Fallon, 69 Conn. 228, 234, 37 A. 495, is cited as authority for holding that a complaint alleging a completed contract would support a judgment of foreclosure upon the basis of a substantial performance. We do not understand the case to hold further than this: "The defendants . . . asked the court, in effect, by their pleadings, to try the question whether the plaintiff had performed his contract, and if not, whether anything, and if so what amount, was due to him." And hence the court permitted a recovery upon proof of a substantial performance. We know of no decision in our State upon this point. We find decisions elsewhere which require specific allegations of substantial performance. We do not see how a defendant will be prejudiced by the adoption of the rule of pleading stated herein. When we go further, and hold that under allegations of a completed, or a substantially completed, contract, the plaintiff may recover for a partial completion upon proof that the owner prevented him from completing his contract, we inject into the case an element of which the complaint gave the defendant no notice. Such a rule of pleading may *Page 296 result in serious prejudice to a contractee. It is contrary to the spirit of our Practice Act and the authorities appear to forbid it. Estes on Pleading, § 323; Wolfe v.Howes, 20 N.Y. 197; Lawson v. Hogan, 93 N.Y. 39;Robinson v. Chinese Charitable Benevolent Asso.,47 N.Y. App. Div. 69, 70, 62 N.Y.S. 292. Hare and Wallace, in their note to Cutter v. Powell, 2 Smith's Leading Cases, p. 53, say: "In cases of prevention by the party, or of tender and refusal, the plaintiff has a right of action on the special contract, prevention or refusal being equivalent for that purpose to performance; . . . but in this case he must declare specially, and set for the readiness, or tender and refusal, or prevention." Cases cited. See also 27 Cyc. 380.
While the complaint does not in terms allege the completion of the contract, it does allege that the plaintiff commenced and finished furnishing materials and rendering services according to the tenor of the contract, and that the architects wrongfully refused to give the certificate of completion. We think the pleader intended to allege a completed contract. This is now of no importance, since the plaintiff now claims, and the defendant apparently acquiesces, that the complaint may be construed as setting up a claim arising out of the contract and one based upon the reasonable value thereof by virtue of a substantial performance of the contract.
The trial court has found a substantial performance, a conclusion which, upon the subordinate facts found, seems to be considerably in advance of any heretofore reached in our decided cases. In an ordinary case of substantial performance the rule of Pinches v. SwedishEvangelical Lutheran Church, 55 Conn. 183, 187,10 A. 264, governs, that "services rendered and materials furnished under a special contract, but not in entire conformity with it, provided the deviation from the *Page 297 contract was not wilful, and the other party has availed himself of, and been benefited by, such labor and materials," may be recovered for to the extent of the benefit conferred, having reference to the contract price for the entire work. "In cases where only some additions to the work are required to finish it according to the contract, or where, as in the case of Blakeslee v. Holt (42 Conn. 226), defects in it may be remedied at a reasonable expense," the recovery will be the difference between the balance due under the contract and what it would cost to complete the contract. The trial court and the majority opinion place this case within the class last referred to. The plaintiff did not offer to prove the reasonable value of the work done and materials furnished. The court determined the amount of its judgment by deducting the sum for which the defects and omissions could have been done, from the balance due on the contract, thus adopting the rule of Pinches v.Swedish Evangelical Lutheran Church. This rule is an exception to the general rule. The majority opinion sustains this ruling. We do not controvert either the authority or the justice of this rule. We think the facts of this case make it inapplicable, and that it falls within another exception to the general rule. The finding is that the defendant wrongfully prevented the plaintiff from completing the contract. As we understand the rule laid down in our decisions, the plaintiff thereafter had the right to treat the contract as rescinded and, upon proper allegations, recover on a quantum meruit for the work and labor performed, together with the special damage suffered, or it might have brought its action for damage suffered, or it might have brought its action for damages against the defendant for its breach of the contract. We pointed out in Valente v. Weinberg,80 Conn. 134, 67 A. 369, the distinction between it andPinches v. Swedish Evangelical Lutheran Church, and that each had its own measure of recovery. We said *Page 298 (p. 138): "The present case is within the exception which permits a recovery by the contractor when the other party has incapacitated himself to perform his part of the contract, or prevented the contractor from performing his." In such case, we held, the measure of recovery is not the contract price less the cost of completing the contract, but the reasonable value of the services and materials furnished, or just damages for the breach. Again, in Hoyt v. Pomeroy, 87 Conn. 41, 46,86 A. 755, we said: "When one party without fault on his part is prevented by the other from completing the contract, he may treat it as rescinded and recover on quantum meruit for the part performed, or sue for damages for the breach of the contract." Some authorities hold that the measure of damages is the value of the services plus the damages sustained by the refusal to allow performance. Phillips on Mechanics Liens (2d Ed.) § 139; Cutter v. Powell, 2 Smith Leading Cases (Hare and Wallace Notes) p. 44. Certainly this rule measures the actual loss. But so do those we adopted inValente v. Weinberg, 80 Conn. 134, 67 A. 369, and these are those generally adopted by the authorities in an action where performance of a special contract has been prevented by the party from whom the recovery is sought. "In such a case," the Supreme Judicial Court of Massachusetts say, "the innocent party may either sue on the contract for damages for the breach, or, if he so elects, he may regard the action of the defendants as indicating a purpose on their part to repudiate the contract, may accept the repudiation and recover upon a quantum meruit the value of his services as if the special contract had not existed." Posner v. Seder,184 Mass. 331, 333, 68 N.E. 335; Bailey v. Marden,193 Mass. 277, 279, 79 N.E. 257; Moore v. Board ofRegents, 215 Mo. 705, 115 S.W. 6; Philadelphia v.Tripple, 230 Pa. 480, 79 A. 703; 40 Cyc. 2830. See *Page 299 cases cited in Valente v. Weinberg, 80 Conn. 134,67 A. 369.
In the case of substantial performance of a contract, it is just that the contractor should get the benefit of his contract, and it is just that the contractee should not be obliged to simply pay the value of the work done, for he may have made a good contract for himself. Hence the measure of recovery, doing best justice to each party to the contract, is the contract price less the sum it would cost to complete the work as agreed.Blakeslee v. Holt, 42 Conn. 226, 229. But where the contractor has been prevented from completing his contract, the added element of fault on the part of the contractee is present. Under such circumstances should the contractee, who has prevented the completion of the contract, and who may have made a contract very advantageous to himself, be compelled to pay merely the contract price less the value of the defective or omitted work? Or should the contractor, who is not in fault, be permitted to recover either damages for the breach, which would give him the profits of his contract, if any, or the reasonable value of the work done, if the contract was an unprofitable one for him? The contractee has breached his contract, therefore the law has deemed it just to give the contractor the option of these remedies, and this we conceive to be the reason for the adoption of these measures of recovery by the authorities generally and by us in Valente v. Weinberg,80 Conn. 134, 67 A. 369.
The majority opinion states that Valente v. Weinberg is not a case of substantial performance, and that the rule there adopted applies to a case of wrongful prevention when there has been no substantial performance. But the court, in that case, in stating the claim of the plaintiff to which it applies the rule it adopts, says, on page 135: "The plaintiff claims that after he had nearly *Page 300 completed the building the defendant unlawfully ejected him from the premises and prevented his completion of the contract." We conceive no proper legal distinction between the substantial performance of a contract and the "nearly completed performance" of a contract. By adopting such a distinction, we should have a different measure of recovery for each, and this the majority opinion contemplates. We feel that this ruling will add to the difficulties of the trier and to the uncertainty of the law. When could a contract be said to be substantially performed and when nearly completed? If the rule of Valente v. Weinberg applies only to cases of prevention of fulfillment when the contract has not been substantially performed, it follows that in the case of a partial performance, when the contractee has prevented complete performance, two remedies are given, while in the case of a substantial performance, when the contractee has prevented complete performance, one remedy is given and that is the equivalent of one of the remedies given in the case of a partial performance, viz. damages for breach of contract. Why treat the case of a partial performance better than the case of a substantial performance? We are unable to agree with the majority opinion in so doing.
In this opinion TUTTLE, J., concurred. *Page 301