Standard Roller Bearing Co. v. Hub Machine Welding & Contracting Co.

Opinion by

Kephart, J.,

The plaintiff brought this action to recover the contract price of ten sets of automobile axles. The specifications for these axles were as follows:

“Front Axle — 50" tread, spring centres 28Axle— I Beam Section of Chrome Nickel Crucible Steel Casting, carefully heat treated. Steering Knuckles — 30 carbon, mild steel drop forged and carefully heat treated. Finally machined to true and uniform dimensions, as specified by blue print S. K., No. 6404.

“Rear Axle — 50" tread, 34%" spring centres. Axle— I Beam Section of Chrome Nickel Crucible Steel Casting and heat treated.”

The defendant claims that the axles delivered were not made according to these specifications. The front axle was about one-eighth inch short and the holes for the spring attachment were not drilled in their proper places. The rear axles were short from one-eighth to three-eights of an inch. These axles could not be used without making some adjustments at an expense to the defendant. The plaintiff’s testimony was to the effect that- the axles were made according to specifications except a slight variation in the length of the front axle which would not affect either its operation or use. The court in submitting the case to tbe jury instructed them that if there was a “substantial compliance by the Standard Roller Bearing Company with the terms of their contract to furnish axles/’ the verdict of the jury should be for the plaintiff for the amount of the claim with interest.

It is quite true that the common law doctrine of literal performance has been modified and substantial performance is all that is required in most contracts. “The equitable doctrine of substantial performance is intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadvertant or unimportant omissions and defects. It is incumbent on him who invokes its protection to present a case in which there has been no wilful omission or departure from the terms of his contract. If he fails to do so, the question of substantial performance should not be submitted to the jury”: Gillespie Tool Co. v. Wilson, 123 Pa. 19.

In applying the doctrine of substantial performance due regard must be had to the nature and character of the contract, and the writings wherein the parties are careful to express their understanding. In contracts specifying articles to be manufactured in accordance with dimensions, where exactness to the fraction of an inch is necessary, it would not do to hold these contracts to be substantially performed where the article is delivered short of the required dimensions. Substantial performance in such contracts means literal performance, except slight variations which will not interfere with the use or efficiency of the article. It is always safer in contracts which specify exactness to hold the manufacturer to literal performance. The doctrine of literal performance was enforced in the case of Harris v. Sharpless, 202 Pa. 243, and was recognized in Patterson v. Brace, 198 Pa. 107. The front axle being one-eighth inch short was conceded by all to be not a material variation in the length of the axle as it would not interfere with the steering apparatus or the swing of the front wheels; but the holes for the spring being out of place was a material change in the contract, and if defendant’s claim as to this and the shortness of the rear axles be true, the court should have instructed the jury that the defendant was not bound to take the axles, and if it did accept them, and it became necessary to expend money to make them useful, it had a right to claim a set-off for this or purchase new axles to take their place. Under the defendant’s theory of the case, the axles could have been moulded to an exact length, making them interchangeable. The defendant was entitled to the performance of the contract in accordance with the specifications, except slight variations not interfering with the accustomed use of the articles. But when such variations cause the vendee to expend money to make the article useful, or if the article as delivered impairs the efficiency of the machine as a whole, the vendee has a right to reject the article. If, as a fact, the articles were not rejected, and the defendant accepted them, it must be held to pay the contract price, less such deductions as will pay for making the axles useful, or the price of new axles to take their place, or the value on the market, if defendant has not attempted either of the foregoing alternatives. In this respect the measure of damages is the same as that applied in the doctrine of substantial performance: Moore v. Carter, 146 Pa. 492; Kull v. Middleman, 51 Pa. Superior Ct. 137.

The court, in its instruction to the jury and the illustration given as to substantial performance of a contract, did not give due weight to the defendant’s evidence, and permitted the jury to find substantial performance in defects clearly a violation of the contract. The illustration failed to take into consideration that in an order such as there quoted, it would have been the purchase of articles of a kind or class; but in the present case the articles purchased are specific with an implied warranty, and the measure of damages in such case is different. It is only necessary to sustain the seventh, eighth and ninth assignments of error, which is here done.

The judgment is reversed and a venire facias de novo awarded.