230 N.Y. 239, 129 N.E. 889 (1921)
Jacob & Youngs built a country residence for Kent at a cost of upwards of $77,000 and sued to recover a balance of $3,483.46 remaining unpaid.1 The work of construction ceased in June, 1914, and Kent then began to occupy the dwelling. There was no complaint of defective performance until March, 1915.2
One of the specifications for the plumbing work provided that all wrought iron pipe must be well, galvanized, lap welded pipe of the grade known as standard pipe of Reading manufacture.3 Kent learned in March, 1915, that some of the pipe, instead of being made in Reading, was the product of other factories. The architect directed the plaintiff to do the work anew.4 The plumbing was encased within the walls except in a few places where it had to be exposed. Obedience to the order would have meant the demolition at great expense of substantial parts of the completed structure.5 The plaintiff left the work untouched and asked for a certificate that the final payment was due. Refusal of the certificate was followed by this suit.6
The evidence showed that the omission of the prescribed brand of pipe was neither fraudulent nor willful but the result of the oversight and inattention of the plaintiff’s subcontractor.7 Reading pipe is distinguished from other brands only by the name of the manufacturer stamped upon it at intervals of between six and seven feet. Even the defendant’s architect failed to notice the discrepancy upon inspection.89 The plaintiff tried to show that the brands installed were the same in quality, in appearance, in market value and in cost as the brand stated in the contract. This evidence was excluded, and a verdict was directed for the defendant. The Appellate Division reversed and granted a new trial.1011
Whether the plaintiff may recover the balance due under the contract despite having installed pipe not manufactured by Reading?12
An omission, both trivial and innocent, will sometimes be atoned for by allowance of the resulting damage, and will not always be the breach of a condition to be followed by a forfeiture.13 The distinction is akin to that between dependent and independent promises, or between promises and conditions.14 Considerations partly of justice and partly of presumable intention are to tell us whether this or that promise shall be placed in one class or in another.15
Yes. The evidence sustains a finding that the omission of the prescribed brand of pipe was neither fraudulent nor willful.16 It was the result of the oversight and inattention of the plaintiff’s subcontractor.17 Reading pipe is distinguished from other brands only by the name of the manufacturer stamped upon it at intervals of between six and seven feet.
Even the defendant’s architect failed to notice the discrepancy upon inspection. The plaintiff tried to show that the brands installed were the same in quality, in appearance, in market value and in cost as the brand stated in the contract. The evidence was excluded, and a verdict directed for the defendant. The Appellate Division reversed and granted a new trial.
The plaintiff may recover the balance due under the contract.18
Related opinions on this issue
Joined by Pound And Andrews, Jj.
Justice Mclaughlin dissents from the majority's conclusion that the plaintiff may recover the balance due.19 He argues that the plaintiff did not perform its contract as its failure to install the specified pipe was either intentional or due to gross neglect amounting to the same thing.20 Only about two-fifths of the pipe installed was of the Reading manufacture as required.21
The rule of substantial performance with damages for unsubstantial omissions has no application in this case.22 The defendant had a right to contract for what he wanted and to get what the contract called for before making payment.23 It is no answer to say that the pipe put in was just as good or that the difference in value would be nominal or nothing.24
The defendant was entitled to the specific pipe regardless of whether another kind would have been just as good.25
Whether the trial court erred in excluding evidence that the installed pipe was equivalent to the specified pipe?26
Yes. The plaintiff tried to show that the brands installed, though made by other manufacturers, were the same in quality, in appearance, in market value and in cost as the brand stated in the contract.29 This evidence was excluded, and a verdict directed for the defendant.30 The Appellate Division reversed and granted a new trial. The evidence sustains a finding that the omission of the prescribed brand of pipe was neither fraudulent nor willful.
The trial court erred in excluding the evidence.31
Whether any allowance for the deviation should be measured by the cost of replacement or by the difference in value?32
In the circumstances of this case, we think the measure of the allowance is not the cost of replacement, which would be great, but the difference in value, which would be either nominal or nothing.33 The owner is entitled to the money which will permit him to complete, unless the cost of completion is grossly and unfairly out of proportion to the good to be attained.34 When that is true, the measure is the difference in value.35
Yes. In the circumstances of this case the measure of the allowance is not the cost of replacement, which would be great, but the difference in value, which would be either nominal or nothing. Some of the exposed sections might perhaps have been replaced at moderate expense.36 The defendant did not limit his demand to them, but treated the plumbing as a unit to be corrected from cellar to roof.37
The rule that gives a remedy in cases of substantial performance with compensation for defects of trivial or inappreciable importance has been developed by the courts as an instrument of justice.38
Any allowance for the deviation should be measured by the difference in value.39