. Michael Nolan (Nolan), the plaintiff’s testator, contracted with the Defendant to do the mason work for two buildings, with payments made in installments as work progressed. All installments were paid except the last, and Nolan commenced this action to recover the last installment, claiming that work was fully performed.
It is a general rule of law that a party must perform his contract before he can claim the consideration due him upon performance; but the performance need not in all cases be literal and exact.
The Defendant claimed Nolan had not fully performed according to the terms and requirements, and that he had not obtained the architect’s certificate, as required by the agreement. Nolan presented evidence that he had fairly and substantially performed, but that the architect refused to give him the certificate.
The referee found that Nolan substantially complied with the requirements, but there was a trivial defect, for which a $200 deduction should be made from the last installment.
Was Nolan entitled to recover without the architect’s certificate?
· The referee found that Nolan substantially performed under the contract.
The architect unreasonably and improperly refused to give Nolan the certificate, and that unreasonable refusal dispensed with Nolan’s need for the certificate
Whether a contract has been substantially performed is a question of fact depending upon all circumstances of the case; and the court found that Nolan had substantially performed without the architect’s certificate.