Frederick B. Smillie, Paul A. Davis, 4th., and Smillie, Bean & Scirica, all of Norristown, for appellant.
Bernard M. Borish, Philadelphia, Maxwell Strawbridge, Morristown, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, for appellee.
Before Rhodes, President Judge, and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, Judges.
[ 167 Pa. Super. Page 533]
This action to recover the balance due on a contract for the installation of storm windows on defendant's premises is defended on the ground that plaintiff failed to perform the work in accordance with the contract. In more specific terms, the defense is that the work was not done in a good and workmanlike manner.
The jury found for plaintiff in the full amount of its claim. Defendant then moved for judgment n. o. v. and for a new trial, alleging that the trial judge committed fundamental error in the charge, to which only a general exception was taken. From a denial of his motions he appeals, pressing, however, only the denial of the new trial motion.
Defendant bases his claim upon the following excerpts from the charge, both relating to the doctrine of substantial performance: (1) 'A contract is not substantially performed if the contractor wilfully, carelessly or in bad faith fails to perform or leaves the work incomplete in material respects, or omits work that cannot be done by the owner except at great cost and
[ 167 Pa. Super. Page 534]
risk or is not capable of remedy.' (2) 'Did the plaintiff carelessly and intentionally install storm windows that were too small, filling in the crevices with strips and cutting down the window stops, so that it did not substantially perform the contract?'
The alleged error in these excerpts is readily apparent upon comparing them with several accepted statements of the rule. Cf. Restatement, Contracts, §§ 274(1) and 275; Sgarlat v. Griffith, 349 Pa. 42, 36 A.2d 330.
One of the earliest and best statements appears in Danville Bridge Co. v. Pomroy & Colony, 15 Pa. 151, 159: '* * * where a party, acting honestly, and intending to fulfil his contract, performs it substantially, but fails in some comparatively unimportant particulars, the other party will not be permitted to enjoy the fruits of such imperfect performance, without paying a fair compensation according to the contract, receiving a credit for any loss or inconvenience suffered. * * * Of course, the indulgence is not to be so stretched as to cover fraud, gross negligence, or obstinate and wilful refusal to fulfil the whole engagement, or even a voluntary and causeless abandonment of it.' See also Typhoon Air Conditioning Co., Inc., v. Fried, 147 Pa. Super. 605, 24 A.2d 926.
Under the Pennsylvania concept of the rule the presence or absence of good faith, i. e., whether the breach was willful or merely inadvertent, is extremely important. As Mr. Justice Sterrett stated in Gillespie Tool Co. v. Wilson, 123 Pa. 19, 26, 16 A. 36, 37: '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 ...