Opinion
September 21, 1910.
Howard J. Bush, for the appellant.
Thomas W. McArthur, for the respondents.
The plaintiff sues on quantum meruit for work performed and material furnished in building a schoolhouse. The answer alleges a written contract and that the building was to be erected according to certain plans and specifications, which the plaintiff failed to follow in that he did not install ventilators.
The schoolhouse was a small building, and it is conceded that the price for its erection, whether the agreement was verbal or written, was $425, and with a woodshed added was $450. The plaintiff started building operations for the erection of the schoolhouse from a picture taken from a catalogue, when the defendant trustees concluded it would be better to have plans and specifications and a written contract, and procured the same to be prepared which they submitted to the plaintiff. There was some confusion as to who the contractor would be, and the plaintiff signed the names of two other men to the contract because his own name was not mentioned therein. The learned trial court correctly held that the contract must be deemed that of the plaintiff, and was as binding upon him as though he had signed his own name thereto.
At the close of the trial the court directed a verdict in favor of the defendants, holding that the plaintiff was not entitled to recover any sum because he had failed to complete his contract by not installing the ventilators.
We are of the opinion that this was error and that the plaintiff showed substantial performance, and that it was a question of fact for the jury whether the omission of the ventilators was intentional and willful, and if not, that the plaintiff was entitled to recover for the labor and material which he furnished, less any deduction that might be made on account of the ventilators. The absence of the ventilators was not a structural defect in that it weakened the building or rendered it less substantial. They were a simple affair consisting of grates and air pipes, and manifestly could be easily supplied after the building was erected. The refusal of the plaintiff to install them, under the circumstances, cannot be said to have been, as matter of law, willful and intentional. The picture from which the plaintiff first figured the cost of the school building at $425 showed no ventilators at all. When his attention was called to the fact that the plans and specifications which the defendants had had drawn to accompany their written contract provided for the ventilators, he says that he told the defendants that he had not figured on them, and that one of the defendants who principally had charge of the erection of the schoolhouse said that he might omit putting them in. This situation did not make his subsequent refusal to install the ventilators necessarily intentional or willful. Although the plaintiff's contract called for the installing of the ventilators, and even though one of the defendant trustees did not have the power to change the contract and relieve him from installing them, still, if the plaintiff, in good faith, believed, from the conversation which he had with the defendant trustee, that he would be permitted to omit the ventilators, and in good faith did omit them, the jury would be justified in saying that he substantially performed his contract, and that there was no intentional departure from the specifications. Such was the situation in Smith v. Clark (5 N.Y. St. Repr. 165), the facts in which were much like the present case, and the reasoning of which commends itself to us. The defendants can be fully compensated for the omission by deducting the cost of putting in the ventilating apparatus from the amount due the plaintiff, and he should not be deprived of his compensation for erecting the school building because of an honest misunderstanding.
The complaint being on quantum meruit, and the answer setting up the written contract and non-performance of it, the plaintiff, without further pleading, was entitled to show substantial performance. Substantial performance of a building contract is actual performance, and in such case deduction may be made from the contract price for small omissions or defects in the work occurring in good faith. ( Van Orden v. MacRae, 121 App. Div. 143; affd., 193 N.Y. 635; Spence v. Ham, 163 id. 220.)
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except SEWELL, J., dissenting.
Judgment reversed and new trial granted, with costs to appellant to abide event.