The first count of the complaint states facts supporting a cause of action arising from the defendant's failure to pay the sum of money agreed upon in the plumbing contract, when that sum became due by reason of the plaintiff's completion of the contract. The trial court held that for the purpose of supporting such a cause of action the plaintiff had substantially performed the plumbing contract.
I think the court erred in so holding. There was not such a substantial compliance with the contract as gave the plaintiff a right of action based solely on the breach of the promise specified in the contract. It is true that the substantial performance of a contract is ordinarily a question of fact for the trial court; but when, as in this case, the conclusion of performance is inferred wholly from subordinate facts found and set forth in the record, which are plainly inconsistent with such inference, that conclusion involves an error in law. The facts found, however, do show that the plaintiff furnished the materials and rendered the services mentioned in the plumbing contract, in most particulars in accordance with that contract. It is claimed, and perhaps rightly, that they also show that the defendant has accepted and retains the benefit of the plaintiff's work; upon these facts a good cause of action has been proved. Under such circumstances the law imposes upon the defendant the duty of paying the plaintiff the value of his work, measured by the prices stated in the contract, less the damage to the defendant caused by the plaintiff's failure to fully perform the contract. It is evident that the practical difference between this cause of action and that arising upon a substantial performance of the contract, is slight. Either may be supported and attacked by substantially the same evidence. Under the former system of pleading, when the two causes of action had to be enforced, if at all, through different and distinct forms of action, the difference was material. But now the only question is, whether facts found supporting either cause of action come fairly within a statement of material facts contained *Page 424 in the complaint, or, if variant, whether that variance can be regarded as material after trial and judgment.
The plaintiff's statement might well have been amended after trial, in view of the facts actually proved. It is suggested in the opinion of the court that the particular claims made by the defendant during the trial operate as a waiver, and that a judgment can be sustained upon the cause of action proved. The difference between the failure to pay for work done, the price promised to be paid in a contract, and the failure to pay for work done, its actual value measured by the terms of the contract, is not a very substantial one for practical purposes, and is no longer important as determining the form of an action. I incline to concur with hesitation in the result announced in the opinion.
Under the second count the plaintiff claimed to recover for certain work done at defendant's request, and the defendant claimed that payment for this work was included in the contract price for a furnace built by the plaintiff. In the contract the plaintiff agreed to "set furnaces as low in cellar as necessary to secure owner from any fear of fire." The defendant claimed that by a true construction of the contract the plaintiff was bound to secure her from entertaining any fear of fire, however unfounded or unreasonable such fear might be. The court ruled that the plaintiff contracted to secure the owner against danger or any reasonable cause or fear of fire.
This ruling was correct. The court finds that there was no danger, and no reasonable cause of fear of fire, and this renders it unnecessary to consider the effect of the so-called arbitration, which the defendant claimed in argument had been improperly included in the finding.
In other particulars, I concur in the opinion. *Page 425