performed his contract.45 In the words of a Massachusetts Court, however, there must "be such an approximation to complete performance, that the owner obtains substantially what was called for by the contract." 46 Where the contractor has failed to show even substantial performance, the measure of damages has been held to be the difference between the contract price and the value or fair cash market price of doing the work called for by the contract. 47 Where there has been a substantial performance, the measure of the owner's damages has been held to be the difference between the value of the work done or of the building erected and the value of the work contracted for, or of the building, as it would have been, if the contract had been duly performed." The difference in value in some states is held to be the reasonable cost of the work which the owner must have 45 Voorhis v. Baier (Iowa), 191 N. W. 125; White v. Mitchell (Wash.), 213 Pac. 10; Terra Cotta Co. v. Caldwell, 234 Fed. 491. 46 Handy v. Bliss, 204 Mass. 513. 47 N. Y. etc., Co. v. City etc., Co., 88 N. Y. Supp. 233; Bertram v. Bergquist, 153 Ill. App. 43. 48 Pierson v. Smith, 178 N. W. 659; Drummond v. Hughes, 104 Atlantic 137; Otis Eleva tor Co. v. Cook (Texas), 219 S. W. 546; Walsh Construction Co. v. Cleveland, 271 Federal 701; Kasbo Construction Co. v. School District (North Dakota), 184 N. W. 1029; Norwood v. Lathrope, 178 Massachusetts 208; Olson v. Henderson, 113 N. Y. App. Div. 676; White v. MacLaren, 151 Massachusetts 553; but see White v. Mitchell, 213 Pacific 10 (Washington). done to make the building conform to the contract. 49 It has also been held that where the value of the building is but slightly depreciated as a result of the defective performance, and the work necessary to make the building conform absolutely to the contract provisions would require reconstruction work and disproportionate expense, the contractor will not be penalized the cost of making the work conform literally to the specifications.50 49 Lord v. Comstock, 52 N. Y. Superior Court 548; Norcross v. Vose, 199 Massachusetts 81; Wheaton v. Lund, 61 Minnesota 94; Walstrom v. Oliver etc., Co., 161 Alabama 608; Snider v. Peters etc., Co., 108; 167 N. W. Nunn v. Brillhart, 230 S. W. 862. 50 White V. McLaren, 151 Massachusetts 553; Pinches v. Swedish etc., Church, 55 Connecticut 183; Taulbee v. Moore, 106 Kentucky 749. CHAPTER II REQUISITES OF CONSTRUCTION § 62. In General.-There is naturally nothing of more importance as affecting the mutual rights and liabilities of the owner and the builder, and, to a certain extent, the architect, than the construction contract. It is to this contract that the courts will look primarily in determining and interpreting the special rights and liabilities of the parties.1 While in the absence of a specific statute it is ordinarily not necessary that the contract, if it is to be performed within a year, shall be in writing, yet the custom of reducing the terms of the understanding to written form has now become so well-nigh universal, and the desirability of a contract in definite written form is so apparent, that in referring to the contract hereafter it may be assumed, unless it is otherwise definitely indicated, that where the word contract is used a written contract is referred to. It is one of the prime requisites of any contract 1 O'Keefe v. St. Francis's Church, 59 Conn. 551. 2 Champlain Construction Co. v. O'Brien, 117 Federal 271; and see Plimpton v. Curtis, 15 Wendell (N. Y.) 336; Badders v. Davis, 88 Ala. 367; Central Lunatic Asylum v. Flanagan, 80 Va. 110. 3 that a valid consideration be present, and the building contract is no exception to the rule. It is essential also that there be present in the contract the element of mutuality-the obligation upon the builder to do the work and upon the employer to make payment for the work that is done; a mere memorandum of prices signed by the parties cannot be held to be a binding contract, in the absence of an undertaking by the parties to perform the agreement.5 4 If the contract contains a sufficiently clear statement of the terms agreed upon, so that any terms which are lacking may be supplied by implication, it will not be held void for want of mutuality; so where the contract price is specified in a written agreement, but the agreement fails to set forth a promise to pay, the contract is not void for want of mutuality and the promise is implied from the other terms of the contract." To these more fundamental requisites of a valid contract must be added the element that the building contract must be so phrased as to allow the intent of the parties to be deduced therefrom with a reasonable degree of certainty. In a 3 Majory v. Shubert, 82 (N. Y.) A. D. 633. * Durkin v. City of New York, 49 Misc. (N. Y.) 114; St. Louis etc. Co. v. Clark, 90 Ark. 504; Harlev v. Chicago Sanitary Dist., 107 Ill. App. 546; Flitcroft v. Allenhurst Club (N. J.), 61 Atl. 82. 5 Greve v. Ganer, 36 Wis consin 369; Eyser v. Weissger- V. Allenhurst 7 U. S. v. Ellicott, 223 U. S. 524; Isaacs v. Smith, 55 N. Y. Superior Court 446; Phelps v. Sheldon (Mass.), 13 Pickering 50; Gibson v. Texas Co. (Texas), 239 S. W. 671. comparatively recent case before the Federal Supreme Court, it appeared that there was a variance between the provisions of the contract and the specifications. The court, in its opinion by Chief Justice White, referring to the irreconcilable provisions of the contract and specifications, said: "it is evident that there was a conflict so irreconcilable between the essential provisions of the assumed contract as to render it impossible to enforce it as an agreement between the parties. . . under the circumstances, therefore, the court erred in treating the contract as a valid agreement." Analogous to the foregoing rule is the rule that where the specifications, in exact accordance with which it is covenanted the building must be erected, are so indefinite and so erroneously drawn as to make impossible any proper interpretation of them, or the erection pursuant to them, of a building of any known dimensions, the contract will not be enforced." Other elements of the valid contract which should be specially noted are: That the contract must not contemplate a building in its very character capable of being used for an illegal purpose,10 and that it must, also, be so drawn as to comply with the provisions of the building codes and 8 United States v. Ellicott, 223 U. S. 524. Lyle v. Jackson Co., 23 Arkansas 63, and see Turney v. Bridgeport, 55 Conn. 412. 10 Spurgeon v. MacElwain, 6 Ohio 442. |