This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The doctrine of substantial performance is by no means limited to building contracts. If any contract is performed substantially, recovery can be had thereon subject to recoupment of damages, if any.1 Recovery can be had in case of substantial performance of a contract to construct a heating apparatus.2 A contract for the sale of realty free from encumbrances is substantially performed, though encumbrances exist, if they are less than the amount of the purchase money,3 especially if a release of them is obtained and tendered.4 A contract to consolidate two corporations and to assign all the stock of one of them is substantially performed by transferring the assets, good will and three-fourths of the stock of such corporation, and suppressing its competition.5 So a contract giving A a prior right, over any other person, to buy B's stock in a corporation is substantially performed by giving A an opportunity to buy such stock at the price for which it is finally sold.6 A contract by A to effect a sale of B's land during the existence of an option thereon is substantially performed if A effects a valid contract for such sale, though the deeds are not executed until the option has expired.7 A contract to pay a certain sum for land down and the balance in a certain time is substantially performed by the tender of the entire amount due, such tender being kept good.8 So a contract to convey land to B is substantially performed where the grantor conveys to A who then conveys to B.9 A contract to locate a business at a certain town is substantially performed by locating such business there, in good faith, though it is subsequently removed, or its property and franchises are sold at judicial sale to one who removes the business.10 So a contract to publish a newspaper in an addition to a town for a given time is substantially performed where the paper is printed and distributed in such addition for such time, though the publisher writes his editorials and sets type for a small portion of the time outside of such addition, because the adversary party does not furnish him an office as he had agreed to do.11 The doctrine of substantial performance applies to contracts to locate railroads.12 Thus a contract that one road should intersect another "at" a given city is substantially performed where they intersect within a hundred yards of the city limits.13 So a contract by which a street railway comcovery, subject to recoupment for damages caused by failure to perform literally.21 Hence the contractor is not liable for damages resulting from defects after the owner has had a reasonable opportunity to remedy them."2 So a contract to sink a well is substantially performed in case of an oil well by drilling until oil is struck, even though the contractor loses his tools in the well, which is, on that account, somewhat less valuable.23 So, in case of a well for water, drilling till water is found, is a substantial performance although the contractor does not put a screen at the bottom of the well, because the other party orders him to stop work.24 So one who contracts to drill a well and commences work, may abandon that well and drill another one if completion of the first becomes impracticable by reason of the breaking of the drill.25 A contract to manufacture chattels, to conform to a given pattern or style, is enforceable if substantially performed.26 The proof of a shield design for an advertising sign, was approved by the party for whom it was made, with the statement that he wanted "something of that style." Slight changes made afterwards in placing the words upon the sign, were held not to prevent substantial performance.27 A contract for sending goods for sale on commission, goods not returned in thirty days with express charges prepaid to be treated as sold, is substantially performed by returning the goods within thirty days and remitting the amount of the express charges within a reasonable period after the expiration of thirty days.28 A caterer who does not furnish as good an entertainment as he agreed, but acts in good faith, performs substantially so that he may recover the contract price subject to recoupment for damages.29
4 0berlies v. Bullinger, 132 N. Y. 598; 30 N. E. 999.
5 Robert Mitchell Furniture Co. v. Monarch (Ky.), 39 S. W. 823.
6Pitcairn v. Philip Hiss Co., 113 Fed: 492; 51 C. C. A. 323; reversing 107 Fed. 425. (The question was for the jury. The court cotild not say as a matter of law that such facts did not make substantial performance.)
7 Jones & Hotchkiss Co. v. Davenport, 74 Conn. 418; 50 Atl. 1028.
1 Gottschalk Co. v. Cattle Feeding Co., 62 Fed. 901; Hill v. McKay. 94 Cal. 5; 29 Pac. 406; Aver v. Bangor, 35 Me. 511; 27 Atl. 523; Hayes v. Stortz, 131 Mich. 63; 90 N. W. 678.
2 Shepard v. Mills. 173 111. 223; 50 N. E. 709; affirming 70 111. App. 72.
3 Guild v. R. R., 57 Kan. 70; 33 L. R. A. 77; 45 Pac. 82.
4 McCourt v. Johns, 33 Or. 561; 53 Pac. 601.
5 German Savings Institution v. Refrigerating Co., 70 Fed. 146; 17 C. C. A. 34.
6 Harris v. Scott, 67 N. H. 437; 32 Atl. 770.
7 Reed v. Crane. 89 Mo. App. 670.
8 Black v. Maddox, 104 Ga. 157; 30 S. E. 723.
9 Benge v. Potter (Ky.).55 S. W. 431.
10 Elizabethtown v. Ry., 94 Ky. 377; 22 S. W. 609.
11 Sanborn v. Murphy. 86 Tex. 437; 25 S. W. 610.
12 Judson v. Gage. 91 Cal. 304; 27 Pac. 676.
13 Ft. Worth, etc.. Ry. v. Williams (Tex.). 18 S. W. 206. (The word " at " as applied to the intersection was contrasted by the court pany agrees to "build its road" to a given place, is substantially performed, though for part of the distance such railway exercises its statutory right to make use of the track of another railway company.14 However, a contract to extend a railroad to a certain section of land is not performed by extending beyond such section, but not nearer to it than five hundred feet.15 Building a different railroad from that agreed upon is not substantial performance of such contract.16 A contract to haul all the wood cut upon a certain tract, amounting to about eight thousand cords, is substantially performed by hauling all but a few scattered blocks which amounted to about one-tenth of one per cent of the entire amount of wood.17 The contractor's act in voluntarily collecting the scattered blocks at considerable expense after suit is brought, is not an admission that he had not performed the contract before bringing suit, but is to be referred to an excess of caution. A contract to render ordinary services not involving personal skill, is substantially performed if the contractor employs others to assist him in doing the work.18 A contract to share fees with one who collects certain claims, by obtaining the passage of an Act of Congress for the purpose of such settlement, is substantially performed where a bill is passed at a later season, substantially like the former bill, except that it provides for the payment to claimant in person.19 A contract to devote all one's time to a certain business, is substantially performed though the contractor is absent for short periods of time when his presence is not necessary to the success of the business.20 A contract for constructing waterworks, or furnishing water pressure, if substantially performed, entitles the contractor to rewith " in " as applied to the location of the depot.)