Brief Fact Summary.
Plaintiff sued Defendant for the value of work in preparation for performance. The trial court granted Defendant’s motion for summary judgment.
Synopsis of Rule of Law.
A party may recover for payments made or obligations reasonably incurred in preparation for performance of the contract.
If the plaintiff's counter affidavit is treated as satisfying this requirement there would be comparatively few situations in which the statute would operate; the salutary purpose of the statute--which is to avoid the delay and expense of trials in cases where there is no genuine issue of fact--would be set at naught, for it would almost always be possible for a party to file an affidavit containing on information and belief vague and general allegations of expected proof.View Full Point of Law
Albre Marble & Tile Co. (Plaintiff) was a subcontractor for John Bowen Co. (Defendant) on a public building construction project. A clause in the Plaintiff’s subcontract required Plaintiff to “furnish and submit all necessary or required samples, shop drawings, tests, affidavits, etc., for approval, all as ordered or specified.” Defendant’s building contract was subsequently declared invalid for certain bidding procedures. Plaintiff did not actually perform any work on the building itself but sued Defendant in quantum meruit for the value of the work in preparation for performance.The trial court granted Defendant’s motion for summary judgment.
Whether a subcontractor may recover for services rendered under the subcontract when the general contract is cancelled by a supervening event not chargeable to either party.
Yes. The trial court’s ruling is affirmed on the issue of recovery for work done by Plaintiff. A party may recover for payments made or obligations reasonably incurred in preparation for performance of the contract.
Defendant argues that the expenses incurred were in preparation for performance and that no tile or marble was actually installed in the building prior to the cancellation of the general contract. However, Defendant had actually received part performance of a contract for which it would have paid a price upon completion. Though not all cases involving expenses incurred in preparation for performance justify recovery, There are factors peculiar to this case that justify plaintiff’s recovery of the expenses incurred. First, Defendant bore more responsibility than the Plaintiff for the cancellation of the general contract. Second, the work performed was not within the discretion of Plaintiff. Rather, Defendant had prepared the subcontract and had specifically requested in the subcontract that the work be performed. Plaintiff was thus entitled to recover expenses for the reasonable value of the work performed.