Gallagher v. Sharpless

Per Curiam: This case is not important, either in view of the amount in controversy or the principles involved, yet the assignments of error cover fourteen printed pages of the paper-book. It is impracticable to consider them in detail. A large number of them refer to the admission of evidence, and, as they are not properly assigned, will not be considered. The remaining assignments allege error in the charge of the court and the answers to points. We are not convinced that there was error in either. Much stress was laid upon the point that, under the fifth clause of the agreement, the plaintiffs were bound to submit the questions in dispute to arbitrators before they could proceed upon their mechanics’ lien. But an examination of the fifth clause shows that the present contention does not come within it. There was no dispute in regard to the “ true construction or meaning of the drawings or specifica [139] tions, or as to what is extra work outside of the contract; ” hence there was nothing to refer to Mr. Duckworth, the architect. Nor did any “ dispute arise respecting the value of any work omitted by the contractors,” hence there was no occasion to refer the same to two competent persons, as provided by the agreement. The defence was that the plaintiffs had not complied with their contract; that the work was not done in a workmanlike manner, as required thereby. Upon this point the case was submitted to the jury in a fair and impartial manner. They were told by the learned judge that, if “ there has been, an honest endeavor on the part of the plaintiffs to perform the contract, and .they have substantially performed it, and where the defendant has had the benefit of their labor and materials, in such a case the plaintiffs may recover, not the full price stipulated in the contract, but for the work they have done, deducting, of course, from the contract price, the damages that the defendant may have suffered by reason of the plaintiffs’ failure to perform it fully. That is, where.....the contract has been substantially performed, then the failure to perform comparatively unimportant items will not entirely defeat the plaintiffs’ recovery; but they may recover, after deducting from the contract price a sufficient amount to fully reimburse or compensate the defendant for the shortcomings or failure on the part of the plaintiffs to fully and completely perform it.” This is a fair rule, and is in entire harmony with all our cases. The jury appear to have made a considerable deduction from the contract price, and their verdict meets the substantial justice of the case. In any event, there is nothing in this record which would justify us in disturbing the judgment of the court below. Judgment affirmed.