Procedural history
Defendant Grun appeals from a judgment awarding Plaintiff Cope $122.60 in damages; denying Defendant’s action to enforce his mechanic’s lien and recovery on the contract for $648.00.
Facts
Plaintiff contracted Grun to install a new felt shingle roof on her home. The plaintiff bargained for a varied brown shingle, giving an overall aesthetic look of uniform speckled variation. Defendant installed a shingle he substituted on his own volition, a shingle of his choosing, resulting in a striped appearance. Plaintiff voiced her complaint and rejection. As a result, the contractor replaced approximately 500 square feet of a 2400 square foot roof. The final result was a roof that was patched and striped in appearance. Plaintiff refused to pay, defendant filed a mechanic’s lien and brought suit.
Rule
Each case must be determined on the individual facts, “since the question of substantial performance is one of facts and degree.” Some of the elements or factors to be used in guidance are:
• Extent of non-performance
• Excuse of or for deviation
• Hardship of enforcement
• Cost benefit ratio of performance to non-performance
• Intended purpose of the performance
The court also held that a mathematical formula
of fractional value of expression would ignore the other important factors that
should be used. Judge Cadena also cited
Atkinson v. Jackson Bros., that there
must be a good faith effort to comply with the contract and not a substantial
deviation from the essential object of the contract, and must be inadvertent
and unintentional.
Rationale
“It should not come as a shock to anyone to adopt a rule to the effect that a person has, particularly with respect to [her] his home, to choose for [herself] himself and to contract for something which exactly satisfies that choice, and not to be compelled to accept something else.”
Editorial
So, what is the difference between Jacob & Young, and Grun? Calamari and Perillo, The Law of Contracts, 4th edition, §11.18, “For the doctrine of substantial performance to apply, the part unperformed must not destroy the value or the purpose of the contract.” The plumbing installed in the Kent mansion did not compose a breach of performance that destroyed the value or purpose of the contact. The contract or promise was for a water delivery system constructed of galvanized iron pipe. That it was supposed to be Reading pipe was immaterial, because the fact remains Cohoes pipe still delivered water (the purpose) and was of (I assume) equal monetary and functional value. What the pipe looks like, or what label it is stamped with is extraneous to its function.
On the other hand, what the roof looks like was a promise contracted for by Ms. Cope and agreed to by Grun. There is much common law supporting the idea that a “willful transgressor must accept the penalty of his transgression.” Id. at (b). Grun willfully substituted what he thought would be” just as good” without approval of the Plaintiff. That the defendant installed a waterproof covering over the Cope house is immaterial to the breach of the promise to install a roof of a specific color. The specific color is a value that Grun completely unperformed thereby destroying it. Grun may have done a real spiffy job on the installation of the shingles, but to bad they were the wrong color. If the contract was for a roof of any color, Cope pays, or if Grun had installed a shingle Cope had approved, she pays, but she does not have to pay for something she did not bargain for and rejected immediately upon delivery. Furthermore, Grun got a second bite at the apple. Ms. Cope gave him the opportunity to cure, and in fact resulted in replacement of a little more than 20% of the original roof. This was still unacceptable to Ms. Cope.
In conclusion, a statement for my fellow cynics. Yes, Ms. Cope got a waterproof covering for her home and a night out on the town. Without seeing the trial evidence (pictures) I can not know how bad the roof looked, but of the several I have been around during construction, I think Grun installed the best that the manufacturer sold him. This is a classic problem of a client that can not visualize what the finished product would look like. Working for a person like this is a crap shoot, and like problem clients we will meet in our new profession, sometimes it is a situation better left to your competition. The question now is, does Grun have an action against the shingle manufacturer?