Pratt v. Dunlap

Thayer, J. From the pleadings and the finding it appears that the main issue between the parties upon the first count was whether the plaintiff had fully performed his contract; if he had, he was entitled to recover as for full performance; if he had not, there was a question as to the defendant’s having been damaged by reason of the nonperformance. The court told the jury that to entitle him to recover the plaintiff must *183 under this count prove that he had performed the contract according to its terms. The amount of the verdict shows that the jury must have found that the plaintiff had fully performed his part of the contract, for it exceeds the amount due for a full performance of the contract, less the agreed payment thereon, together with the amount claimed under the second count. There was no claim on the part of the plaintiff that he was within the exception to the general rule that there can be no recovery for services rendered under a special contract unless the contract had been fully performed. His was a building contract, and one to which the exception applies. But he made no claim under it that, if the services rendered were not in full conformity to the contract, he might nevertheless recover for them upon the ground that they were beneficial to the defendant, that he had availed himself of them, and that the deviation from the contract was not wilful. The defendant claimed and asked the court to charge, that as this count was upon a special contract there could be no recovery unless full performance of the contract was proved. The court correctly so charged. But the defendant also made several requests to charge based upon the exception above mentioned, and the court, in response to these requests but not in their exact language, instructed the jury as to the circumstances under which there may be a recovery, when the services rendered under such a contract are not in entire conformity to it, and the rule of damages in such cases. Several of the defendant’s exceptions relate to these instructions and refusals to instruct. It is claimed that while the instructions complained of are in the language used by this court in Pinches v. Swedish Lutheran Church, 55 Conn. 183, 10 Atl. 264, they were too broad and not adapted to the facts in the present case. It is unnecessary to inquire whether *184 the instructions as given, or the requests which called them forth, were correct, because they cannot have been harmful to the defendant. Under the instructions as given, had the jury found that the services rendered were not in entire conformity to the contract, their verdict must have been for a less sum than that which was returned, which, as already stated, was for the full contract price, less an admitted payment, showing that they must have found that the contract was fully performed. Whether the requests, or the instructions, relating to a case of incomplete performance, were correct or not, becomes unimportant. Having told the jury that to recover the plaintiff must prove that he had performed the contract according to its terms, the court later told them that if the plaintiff has shown that he had substantially performed it according to its terms he would be entitled to recover. Attention is called to this latter instruction by an exception which has not been pursued. We see no conflict between the two instructions. Each calls for the performance of the contract to warrant a recovery. Deviations from the contract which are, under the circumstances, slight, trivial, inconsequential, and inconsiderable, if not wilful, will not prevent a recovery under the contract. The law does not regard trifles. Such performance is full performance. The defendant was not entitled to the requested instruction, that if the plaintiff failed to complete his contract because he would lose money by so doing the jury might consider that fact in determining whether or not he wilfully abandoned the contract. There is nothing in the record indicating that there was any evidence tending to show that the plaintiff had failed to complete his contract because he would lose money by so doing. But had there been such testimony, the defendant was not entitled to have it separated from *185 the other testimony and called to the attention of the jury by the court. It lay within the court’s discretion to call their attention to any particular item of the testimony. Nothing appears in the finding concerning the payment of $50 upon the contract. It appears in the charge that such payment was admitted. The court told the jury that such payment did not necessarily imply an admission on the part of the defendant that the plaintiff had fully performed the contract, but that the payment might be considered by them in view of the circumstances under which it was made. The defendant had asked for a positive instruction that the payment did not change the contractual relations of the parties. Such a payment would not necessarily change their contractual relations. But the circumstances under which the payment was made might be such as to affect those relations. In the absence of any finding as to the time, purpose, and circumstances of the payment, we cannot say that the defendant was entitled to the instruction requested. The instruction given was, as far as appears, correct. The defendant, under his counterclaim, claimed that, because the plaintiff neglected to bring the shingles on the sides of the house down upon the stonework, as he was bound to do under the contract, water was driven into the house in times of storm and caused damage to the plastered walls. The jury were told that if they found the facts to be as thus claimed, the defendant was entitled to recover such damages as he had shown by the evidence he had thereby suffered; but that he would not be entitled to recover for any damage thus caused which by the use of reasonable diligence and means he might have prevented. The defendant objects to the last part of this instruction. The defendant was only entitled to recover such damages resulting *186 from the breach of the contract as by the exercise of reasonable means and care he could not have prevented. After he had knowledge of the defective construction and its consequences, he was bound to use reasonable effort and care to prevent resulting damage, and if by such care and effort he could have prevented future damage, he is not permitted to recover for such future damage. Hitchcock v. Hunt, 28 Conn. 343, 349; 3 Page on Contracts, § 1583; 2 Joyce on Damages, § 1288. The charge as given was correct. The plaintiff’s contract was to furnish the work for the completion of a building already partially constructed. There were no specifications, but the parties, before signing the contract, had visited the building and settled upon what was to be done to complete it, for which the defendant was to furnish the material. The contract states expressly that the plaintiff is to “build verandas which will be two.” The plaintiff having offered evidence that he had built and completed the verandas, the defendant offered three witnesses, described as boss carpenters, and asked each of them his opinion as to the meaning of the language “to build two verandas.” They were also asked, “What is necessary to be done in building a veranda?” These questions, upon objection, were excluded. There would seem to be no technical meaning to the words “build two verandas” calling for expert opinion. The finding shows that the plaintiff offered evidence to prove that he had built and completed the verandas. Whether he had done so or not was a question in issue before the court. What is necessary to be done in building a veranda must depend upon the nature of the structure of which it is to be a part. A cheap summer cottage would require different verandas than a more pretentious structure would, and call for different finish and decoration of the verandas. Whether verandas *187 adapted to the defendant's building had been built and completed was a question upon which competent carpenters, after inspecting the premises, or otherwise learning what had been done, could give an opinion which might aid the jury. But their opinion as to what was required to be done, based merely upon the language of the contract, which contained no specifications and did not describe the cottage to which the verandas were attached, was incompetent. The evidence was properly excluded. There is no error. In this opinion Hall, C. J., Prentice and Roraback, Js., concurred.