Opinion
May 9, 1906.
Willoughby B. Dobbs, for the appellant.
Douglas Mathewson, for the respondents.
The complaint is for the balance due on a building contract Performance is alleged, and that was the issue tried. I do not see how the justice could direct a verdict for the defendants. A careful reading of the evidence shows that at best for the defendants the question whether the plaintiff had performed was one of fact for the jury. The law is that if the contract was substantially performed that was performance. The jury had to be so charged, and it was for them to say whether there had been a substantial performance. The omission of some small things is not enough to defeat a recovery on a complaint for performance. Such omissions in the case of building contracts may well be inadvertent or in good faith. Here the justice seems to have directed the verdict because some clothes closets did not have three coats of plaster. They were not to be classified with the walls of the house. The omission at all events cannot be said as matter of law to have been intentional and substantial; that was for the jury.
JENKS and HOOKER, JJ., concurred; HIRSCHBERG, P.J., and WOODWARD, J., dissented.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.