Summary
holding that even 90% completion of a construction was not substantial performance as a matter of law, "particularly where the facts are undisputed that this 10% was the most difficult part of the job"
Summary of this case from Enron Federal Solutions, Inc. v. U.S.Opinion
No. 70-242.
Rehearing Denied June 18, 1970. June 2, 1970. Not Selected for Official Publication.
Supreme Court No. 23536.
Action by subcontractor against contractor on contract for preparation of flooring in remodeled building so that tile could be laid. The District Court, El Paso, County, John F. Gallagher, J., dismissed subcontractor's complaint and contractor's counterclaim for breach of contract for failure to complete job, and subcontractor brought error. The Court of Appeals, Enoch, J., held that it could not be said as matter of law that there was substantial performance by subcontractor, although only 10% of surface area of floor was not prepared, particularly where omitted 10% was most difficult part of job, subcontractor's failure to perform was something more than slight or inadvertent omission, and failure to prepare omitted 10% was material breach, precluding recovery on contract.
Affirmed.
Contracts 315
Wilbur F. Denious, Jr., Denver, for plaintiff in error.
R.T. Thomas, Colorado Springs, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order as in the trial court and will be referred to as plaintiff and defendant.
This case involves a dispute between plaintiff, a sub-contractor, and the defendant, the general contractor, on a remodeling job at Fort Carson, Colorado. Plaintiff had agreed to do certain flooring work in the building for the price of $5,450.00. The defendant paid plaintiff the sum of $4,464.00. Plaintiffs sued for the difference i. e. $986.00. Defendant filed a counterclaim alleging a breach of contract by plaintiff and sought damages in the amount of $1,014.00.
Trial was to the court which at the conclusion of the case, dismissed both the complaint and the counterclaim. We agree with the conclusions of the trial court.
The defendant was under contract with the Federal Government to remodel an old building for use as a commissary. The plaintiff submitted a bid for the preparation of the flooring so that tile could be laid. The plaintiff did the required work on approximately 6,400 square feet. The plaintiff did not do any work on approximately 660 square feet which was the floor of the produce room. There is no question that the produce room floor was included in the original bid by the plaintiff. The dispute arises over a conference held between the plaintiff and defendant after the bid was submitted, but before it was accepted. Plaintiff claims that at this conference, the produce room floor was excluded from the plaintiff's bid by oral agreement. The defendant strongly denies that any exclusion was made. The old flooring of this room was in much worse condition than the other flooring of the building. The boards of the flooring had separated and it was necessary to close these cracks in some fashion and level the floor. Both plaintiff and defendant had observed the floor and knew its condition prior to bidding and the subsequent conference. When the plaintiff moved off the job without doing any work in the produce room, the defendant pulled some of his men off his work and prepared the floor for tile. Defendant had to replace some of the flooring, level the floor and lay plywood on top of the repaired subflooring.
The trial court found that plaintiff had failed to sustain its burden of proving that the contract between the parties excluded the produce room floor. The error alleged by the plaintiff is directed to the following quote taken from the court's findings:
"* * * The plaintiff failed to perform or to substantially perform that part of the contract pertaining to the produce room; and that the plaintiff, being in breach of its contract, is therefore entitled to no recovery on its complaint."
Plaintiff argues that the flooring not prepared was approximately 10% of the total floor surface involved and that 90% having been done, there was substantial performance.
As stated in Reynolds v. Armstead, Colo., 443 P.2d 990:
"The question presented here, however, is whether as a matter of law Armstead (the contractor) substantially performed his contract with Roper, and therefore became entitled to a recovery on the contract. Our authorities judiciously decline to state a formula determining with mathematical certainty what constitutes substantial performance, but instead rely upon the application of general principles. Thus in Morris v. Hokosona, supra, ( 26 Colo.App. 251, 143 P. 826) we stated:
`* * * substantial performance permitting a recovery on the contract means an attempt in good faith to strictly and fully perform and is not satisfied unless there has been only slight or inadvertent omissions or departures which have not affected the value of the structure and which are capable of remedy and for which the employer may be compensated by a reduction of the contract price.'" (Emphasis Added)
Thus, it cannot be said as a matter of law that there was substantial performance by plaintiff even where only 10% of the surface area was not prepared, particularly where the facts are undisputed that this 10% was the most difficult part of the job. Plaintiff's failure to perform was certainly something more than a slight or inadvertent omission.
The cases cited by plaintiff in his argument in support of the substantial performance theory are not in point and not applicable. In each of the cases cited the contractor had completed all the work agreed to be done and the dispute was over the quality of the finished product or the substitution of materials. In the case before us now the plaintiff failed to do anything in the produce room. This failure was a material breach of contract and precluded recovery on the contract. The plaintiff was entitled to the value of the services performed, but there is no evidence to indicate that the $4,464.00 already received was not full compensation for services rendered. Reynolds v. Armstead, supra.
Judgment affirmed.
SILVERSTEIN, C. J., and DWYER, J., concur.