At common law, a strict and literal performance in accordance with the terms of the contract is, as a rule, required.64 In equity, on the other hand, contracts not capable of literal performance will be decreed with compensation for deficiencies where there is a variance, provided the contract can be performed in substance.05 Even at law the rule generally prevails that where one of the parties has endeavored in good faith to perform and has substantially performed his contract, and thereby conferred on the other party a substantial benefit, although he has failed to perform in some particulars, he may recover the contract price, less the amount of the damages sustained by the other party by reason of the failure of strict performance.68
63 Anson, Cont. (4th Ed.) 270.
64 Dauchey v. Drake, 85 N. Y. 407; Glacius v. Black. 50 N. T. 145, 10 Am. Rep. 449; Smith v. Brady, 17 N. Y. 173, 72 Am. Dec. 442; Harris v. Sharpies, 202 Pa. 243, 51 Atl. 9G5, 58 L. R. A. 214. But there may be performance, within the fair intent and meaning of the contract, if the departure from the letter of the contract is trifling. Drew v. Goodhue, 74 Vt. 436, 52 Atl. 971. See "Contracts," Dec. Dig. (Key-No.) § 294; Cent. Dig. §§ 1352-1362.
65 Eaton, Eq. 558.
The rule, it has been said, is based on the theory, "first, that the defects or omissions may be remedied or cured, so that the work will then correspond with the contract, or the other party may be fully compensated in money for the slight damage done him by the failure to fully perform the contract; and, second, that it is unfair and unjust for the one party, who has reaped the benefit in nearly full measure of the other party's labor, to refuse to-pay for the work actually done in accordance with the contract." 67
To justify a recovery on the contract so substantially performed, the omissions or deviations must not be willful;68 and "they must be slight or susceptible of remedy, so that an allowance out of the contract price will give the other party substantially what he contracted for." 69 This rule has its most frequent application in building contracts, where the contractor's labor and materials have added value to the owner's land, which the owner must necessarily retain and have the benefit of. It seems that in such cases, where there is a material breach, the liability is quasi contractual, the plaintiff being allowed to recover because of the unjust enrichment of the other party, and consequently that the amount of recovery should be, not necessarily the contract price less the damages resulting from failure of strict performance, but, as has recently been held in Massachusetts, the additional value to the land of the defendant by reason of the plaintiff's labor and materials, and that the burden is on the plaintiff to show a benefit, and its amount.70 In many cases, however, this value can be ascertained by deducting from the contract price the cost of completing the building or article according to the specifications.71
66 Hayward v. Leonard, 7 Pick. (Mass.) 181, 19 Am. Dec. 268; Nolan v. Whitney, 88 N. Y. 648; Blood v. Wilson, 141 Mass. 25, 6 N. E. 362; Pinches v. Lutheran Church, 55 Conn. 183, 10 Atl. 264; Todd v. Huntington, 13 Or. 9, 4 Pac. 295; Katz v. Bedford, 77 Cal. 319, 19 Pac. 523, 1 L. R. A. 826; Leeds v. Little, 42 Minn. 414, 44 N. W. 309; Gallagher v. Sharpless, 134 Pa. 134, 19 Atl. 491; Keeler v. Herr, 157 111. 57, 41 N. E. 750; Ashley v. Hena-han, 56 Ohio St. 559, 47 N. E. 573; Desmond-Dunne Co. v. Friedinan-Doscher Co., 162 N. Y. 486, 56 N. E. 995; Spence v. Ham, 163 N. Y. 220, 57 N. E. 412, 51 L. R. A. 238; Palmer v. Meriden Britannia Co., 188 111. 508, 59 N. E. 247; Philip Hiss Co. v. Pitcairn (C. C.) 107 Fed. 425; Jones & Hotchkiss Co. v. Davenport, 74 Conn. 418, 50 Atl. 1028; Foeller v. Heintz, 137 Wis. 169, 118 N. W. 543, 24 L. R. A. (N. S.) 327; Mitchell & Pumphrey v. Caplinger, 97 Ark. 278, 133 S. W. 1032. Cf. Ętna Iron & Steel Works v. Kossuth County, 79 Iowa, 40, 44 N. W. 215. See "Contracts," Dec. Dig. (Key-No.) § 294; Cent. Dig. §§ 1852-1362.
67 Dickinson v. Sheldon, 146 App. Div. 144, 130 N. Y. Supp. 889, 892, per McLennon, P. J. See "Contracts" Dec. Dig. (Key-No.) § 294; Cent. Dig. §§ 1852-1862.
68 Morgan v. Gamble, 230 Pa- 165, 79 Atl. 410. See "Contracts," Dec. Dig. (Key-No.) § 291; Cent. Dig. §§ 1S52-1362.
69 Elliott v. Caldwell, 43 Minn. 357, 45 N. W. 845, 9 L. R. A. 52. See, also, Gillespie Tool Co. v. Wilson, 123 Pa. 19, 16 Atl. 36; Van Clief v. Van Vech-ten, 130 N. Y. 571, 29 N. E. 1017; Marchant v. Hayes, 117 Cal. 669, 49 Pac. 840; Anderson v. Todd, 8 N. D. 158, 77 N. W. 599; Cornish Curtis & Greene Co. v. Association, 82 Minn. 215, 84 N. W. 724; Harris v. Sharpies, 202 Pa. 243, 51 Atl. 965, 58 L. R. A. 214; Dickinson v. Sheldon, 146 App. Div. 144, 130 N. Y. Supp. 889; Hoglund v. Sortedahl, 101 Minn. 359, 112 N. W. 408. But see Danforth v. Freeman, 69 N. H. 466, 43 Atl. 621. See "Contracts," Dec. Dig. (Key-No.) § 294; Cent. Dig. §§ 1352-1862.
Where there are defects not remediable, there should be added such further sum as will measure the actual diminished value of the structure because of such defects.72