Citation. 529 S.W.2d 258, 1975 Tex. App. 3128
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Mrs. Fred M. Cope (Plaintiff) sued O.W. Grun Roofing and Construction Co. (Defendant) to set aside a mechanic’s lien filed by Defendant and for damages in the sum of $1,500,000.00 suffered by Plaintiff as a result of the alleged failure of Defendant to perform a contract calling for the installation of a new roof on Plaintiff’s home. Defendant appealed from a judgment for the Plaintiff.
Synopsis of Rule of Law.
A contractor who tenders performance so deficient that it can only be remedied by completely redoing the work for which the contract was established has not substantially performed his duties.
Facts.
Plaintiff and Defendant entered into a written contract, which required Defendant to install a new roof on Plaintiff’s home for $648.00. The contract specified that the color of the roof was to be russet glow. After the roof was installed, Plaintiff noticed that the roof had yellow streaks. Defendant agreed to remedy the situation and removed the nonconforming shingles. However, the replacement shingles did not match the remainder, even after time the color was different. Therefore, it can be reasonably assumed that the only way to have a uniform roof would be to install a completely new roof. Plaintiff sued Defendant to set aside a mechanic’s lien and to recover damages as a result of Defendant’s failure to perform a contract to install a new roof on Plaintiff’s home. Defendant filed a cross-claim for the amount, which Plaintiff agreed to pay Defendant for installation of the roof and for foreclosure of the mechanic’s lien on Plaintiff’s home. The trial court awarded $122.60
in damages to Plaintiff for Defendant’s failure to perform the contract; set aside the mechanic’s lien; and denied Defendant recovery on its cross-claim. Defendant appeals.
Issue.
Whether Defendant’s actions constituted specific performance under the contract?
Held.
No. Judgment affirmed.
A promisor, who has substantially performed is entitled to recover although he has failed in some particular to comply with his agreement. This is known as the doctrine of substantial performance. The question of what amounts to substantial performance is a question of fact. In order to determine if there has been substantial performance, one must weigh the purpose to be served, the desire to be gratified, the excuse of deviating from the letter of the contract and the cruelty of enforcing strict adherence or of compelling the promisee to receive something less than for which he bargained. To constitute substantial performance, the contractor must have in good faith intended to comply with the contract and shall have substantially done so in the sense that the defects are not pervasive, do not constitute a deviation for the plan and are not so essential to the object of the parties in making the contract and its purpose cannot be accomplished by remedying them.
Here, there is evidence that supports the conclusion that Plaintiff can secure a roof of uniform coloring by installing a new roof. The evidence does not establish that the roof, which lacks uniformity in color, serves the same purpose as a roof of uniform color. Therefore, the court cannot say that a contractor who tenders performance so deficient that it can be remedied only by completely redoing the work for which the contract called has established that he has substantially performed his contractual obligation.
Discussion.
When determining if a breach is material, an important factor is the extent to which the non-breaching party is deprived of the benefit, which she reasonably expected from the contract. When determining the extent to which the non-breaching party has been injured, the principle reason for which the parties entered into the contract must be considered.
