Sheldon v. Leahy

Montgomery, J. This is an action to recover for work done under a building contract, in changing over and making additions to a building owned by defendants, under a special contract, and also for some extra work done outside the contract. It appeared on the trial that plaintiff had not completed all the work provided for by the contract, but plaintiff’s claim was that he was prevented by defendants from finishing the job. On the other hand, defendants offered testimony tending to show that plaintiff had abandoned the work without cause, and refused to go on with it. The question of fact as to which party was right in their contention in this regard was fairly submitted to the jury, but complaint is made of the instruction of the court relating to the rights of the plaintiff in case the jury should find as a fact that the plaintiff [30] •was in fault in not completing his contract. The instruction complained of is as follows: “If you believe from the evidence that the plaintiff was not following up his work with reasonable diligence, but was neglecting it, then the plaintiff is not entitled to recover the contract price; but, having done a portion of the work, he is entitled to recover a fair and reasonable price for the work done and material furnished by him, not exceeding such proportionate part of the contract price as the work done amounted to with respect to the whole contract.” We think this instruction is open to the criticism made by the appellants’ counsel. The true rule applicable to such a state of facts as that assumed; in the instruction, namely, that the plaintiff had failed to complete his contract fully, according to its terms, but that defendants had accepted the benefit of his services-in the performance of some portion of the contract, is that, while the plaintiff cannot recover upon the contract, he is entitled to recover upon the quantum meruit, for the work performed, a sum not exceeding the contract price, less the cost of completing the work, and less any damage and added expense which the defendants have been put to by reason of the breach of contract by the plaintiff. Allen v. McKibbin, 5 Mich. 449; Wildey v. School Dist., 25 Mich. 419. This limitation was not stated in the charge. It is contended that the. error was without prejudice. We do not think this contention justified by the record. The judgment will be reversed, and a new trial ordered. The other Justices concurred.