Wilkinson v. Becker

Opinion by

Me. Justice Fell,

The lien filed in this case was for plumbing and gas fitting done under a written contract. The defense set up was that the plaintiff had not substantially performed the contract, and (that therefore nothing was due him. On this issue the case was tried. The rule as to substantial performance was fully stated in the charge, and the jury was instructed that the mere possession and use of the house by the defendant could not be considered as an acceptance of defective work, and that it imposed no liability on him to pay any part of the contract price if the whole contract had not been substantially completed. It is conceded that the instruction on this subject was quite as favorable to the defendant as he was entitled to.

The principal objections to the charge now insisted on relate to the instruction as to the effect of the letter of November 8, 1890, written by the defendant to the plaintiff, and to the direction to the jury that if the defendant undertook to complete the work and deduct the cost from the contract price, he could not set up the non-performance of the contract as ground for withholding from the plaintiff the whole of the contract price. In the letter of November 8, the defendant, after mentioning a number of particulars in which he claims the work is incomplete, says: “ These things and others have not been properly done and must be remedied. I will not accept the plumbing and gas fitting until all is complete, and unless you immediately comply with the contract I will employ a competent plumber to do so and deduct the cost Lorn the contract price.” In considering the effect to be given to this notice all the circumstances must be considered. A dispute between the parties as to the character of the work had existed for a year and a half before the letter was written, and during this period there had been no suggestion by the defendant that the defects of which he complained were of such a character as to release him from payment of the whole price, and the plaintiff’s right to a just compensation had been repeatedly recognized by the defendant. The defendant had moved into the house before the work was ^completed, and during its progress he had supervised it, ordered changes and directed the workmen what to do. After he had occupied the house for four months, in answer to a demand for settlement he wrote the plaintiff, explaining the delay, but making no objection to the work done or to the non-performance of the contract. Fifteen months before the date of this letter the defendant had written to the plaintiff that he would proceed to remedy the defects and charge the cost to him, and in pursuance of this notice the plaintiff’s workmen had gone to the house and attempted to make the work satisfactory to the defendant. The position of the plaintiff throughout had been that he had fully complied with the contract, and that the objections to the work had not been made in good faith, but to delay or avoid payment; and when his efforts to make the work satisfactory to the defendant or to adjust their difference had failed, he assented to the proposition made r.ather than prolong a fruitless controversy, and was willing that the cost of remedying any defects shown to exist should be charged to him.

We see no error in holding that this notice was an election by the defendant to complete the work if the plaintiff failed to do so, and that the plaintiff could recover the contract price less the cost necessary' to complete the work in accordance with the specifications. It was the right of the defendant to hold the plaintiff to the terms of the contract, and if there was a failure of performance in material matters he was not liable for any part of the contract price. His use and occupation of the house imposed no liability on him to pay for the defective work, and none would have been imposed by remedying the defects and supplying the omissions in the work. But the notice given left the plaintiff free to do the work himself or to have it done at his cost by the defendant; it did not leave the defendant free to assert that he was not answerable for the value of the work done because the whole had not been completed.

If the architect’s approval was a prerequisite to recovery by the plaintiff, it was waived by an-undertaking by the defendant to complete the work and deduct the cost from the contract price. We agree with the learned trial judge that as the notice was an affirmance only of the defendant’s rights under the agreement, its formal acceptance by the plaintiff was not essential, and that the evidence did not show that an agreement to arbitrate had been entered into by the parties. The case was carefully and ably tried, and we find no error in the record.

The judgment is affirmed.