Rose v. O'Riley

Ames, J. The instructions requested by the defendant were properly refused. The court would not have been justified in interpreting the auditor’s report as necessarily finding that the plaintiffs did not substantially complete their contract, as far as they could. On the contrary, he finds that they substantially completed the house according to the contract up to the point at which the misconduct of the defendant compelled them to stop, and that the contract for the building of the barn was also substantially performed, “ except the hanging of the large doors.” We cannot say, as a matter of law, that this was not a substantial compliance with all which the contract required them to do, except so far as they were prevented from fulfilling it by the defendant’s own fault. The jury may have thought that the mere placing of the barn doors on their hinges was so slight and trivial a labor that its omission did not amount to a substantial failure on the plaintiffs’ part to fulfil the contract. Exceptions overruled.