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.
One who performs a building contract can recover, without reference to the actual value of the building constructed, even if it is worth much less than the contract price.1 If a building is constructed in accordance with the terms of the contract, the contractor can recover, if he has not guaranteed results, even though owing to defects in the plans and specifications the performance does not accomplish the results expected by the owner.2 If the contractor does not guarantee results, and if he constructs walls in accordance with the plans and specifications of the architect which the owner has adopted, the contractor is not liable by reason of the fact that the walls are not strong enough to stand in wet ground.3 If the terms of a building contract provide that certain concrete shall be well tamped, the contractor is not liable for any injury caused by tamping such concrete in accordance with the terms of the contract, although such provision ought not to have been inserted in the contract.4 A contractor who under protest erects the foundation for a bridge as required by the proper officials can recover, although it subsequently settles due to a defective construction.5 One who constructs a wall in freezing weather when required to do so by the owner, and conforms to plans and specifications, is not liable for defects due to the freezing of the mortar if he has not guaranteed that the wall will stand the weather.6 A contractor who has built a street at the level provided for in the specifications, is not liable because of the nature of the soil and of the exposure of the soil to rain, frost and the like, if the surface subsequently settles below the designated level.7 If walls are plastered with the material which is named in the specifications, there is no implied warranty that the walls will be white.8 An architect may recover for plans furnished in accordance with his contract, though the owner makes no use of them and receives no benefit therefrom.9 If, however, the contractor guarantees certain results from his performance under certain specifications, he is liable if such results are not produced, even if such failure is due to inherent defects in the specifications.10 If the contractor in legal effect guarantees results under the plans, he is liable for damage caused by the fall of the building which he is constructing because of architectural defects, although he has constructed as properly as it could have been constructed under such plans and specifications.11 "Wherever possible the courts prefer to construe such guaranty as conditioned on the possibility of producing such results under such specifications.12 A contract to construct a water-tight cellar,13 or reservoir,14 or roof,15 has been held to be performed, though owing to defects in the plans furnished by the owner such result was not obtained. A contract to dig a well not specifying the flow of water to be obtained, is performed by obtaining a flow even if insufficient for the needs of the owner; and the contractor can recover.16 Thus, if "deep strata water" is to be obtained and is obtained in the required quantity, the owner takes the risk of such water not being suitable for his needs.17 If a contract to dig a well does not guarantee results, such contract will be regarded as discharged when it is reasonably certain that further performance will be of no benefit to one of the parties and that it will be detrimental to the other.18 If the purpose for which the well was to be sunk was known to both parties and it was a term of such contract by implication that a supply of water suitable for such purpose was to be obtained, failure to obtain a supply sufficient for such purpose is a breach.19
2 United States. Thompson v. Searcy, 57 Fed. 1030.
Arkansas. Gottlieb v. Rinaldo, 78 Ark. 123, 6 L. R. A. (N.S.) 273, 93 S. W. 750.
Georgia. May Mantel Co. v. Blowpipe Co., 93 Ga. 778, 21 S E. 142.
Indiana. Smock v. Pierson, 68 Ind. 405, 34 Am. Rep. 269.
Iowa. Fauble v. Davis, 48 Ia. 462.
Louisiana. Sully, v. Pratt, 106 La. 601, 31 So. 161.
Massachusetts. Cashman v. Proctor, 200 Mass. 272, 86 N. E. 284.
Minnesota. Thompson-McDonald Lumber Co. v. Morawets, 127 Minn. 277, L. R. A. 1915E, 302, 149 N. W. 300.
New York. Knoch v. Bernuth, 145 N. Y. 643, 40 N. E. 398; Easthampton Lumber & Coal Co. v. Worthington, 186 N. Y. 407, 79 N. E. 323.
Oregon. Hoskins v. Powder Land & Irrigation Co., 90 Or. 217, 176 Pac. 124.
Rhode Island. Ferris v. Pett, - R. I. - , 2 A. L. R. 768, 105 Atl. 369.
Tennessee. Wallace v. Williams (Tenn.), 69 S. W. 267.
Virginia. Adams v. Tri-City Amusement Co., - Va. - , 98 S. E. 647.
Washington. Perkins v. Bank, 17 Wash. 100, 49 Pac. 241; Schwede v. Hemrich, 29 Wash. 124, 69 Pac. 643.
Wisconsin. Speliopoulos v. Schick, 129 Wis. 556, 109 N. W. 668.
3 McGuire v. J. Neils Lumber Co., 97 Minn. 293, 107 N. W. 130.
4 McGuire v. J. Neils Lumber Co., 97 Minn. 293, 107 N. W. 130.
1 Thompson v. (Searcy County, 5T Fed. 1030, 6 C. C. A. 674. (In this case, one-third.)
2 California. McConnell v. Corona City Water Co., 149 Cal. 60, 8 L. R. A. (N.S.) 1171, 85 Pac. 929; Mannix v. Tyron, 152 Cal. 31, 91 Pac. 983.
Indiana. Carroll County v. O'Con-nor, 137 Ind. 622, 35 N. E. 1006, 37 N. E. 16.
Kentucky. McBurnie v. Stelsly (Ky.), (Ky.), 97 S. W. 42, 29 Ky. L. Rep. 1191.
Massachusetts. Duncan v. Cordley, 199 Maw. 299, 17 L. R. A. (N.6.) 697, 85 N. E. 160.
Montana. Roberts v. Sinnott, 55 Mont. 369, 177 Pac. 252.
Michigan. Schliess v. Grand Rapids, 131 Mich. 52, 90 N. W. 700.
New York. MacKnight, etc., Co. v. New York, 160 N. Y. 72, 54 N. E. 661.
Pennsylvania. Harlow v. Homestead, 194 Pa. St. 57, 45 Atl. 87.
Vermont. Fairman v. Ford, 70 Vt. 111, 39 Atl. 748.
Virginia. Adams v. Tri-City Amusement Co., - Va. - , 98 S. E. 647.
Washington. Novelty Mill Co. v. Heinzerling, 39 Wash. 244, 81 Pac. 742.
Wisconsin. Bentley v. State, 73 Wis. 416, 41 N. W. 338.
The contractor is not liable for damages due to the fact that the roof leaks, if he has built the roof in accordance with the plans and specifications. Roberts v. Sinnott, 55 Mont. 369, 177 Pac. 252.
3 Adams v. Tri-City Amusement Co., - Va. - , 98 S. E. 647.
4 Novelty Mill Co. v. Heinzerling, 39 Wash. 244, 81 Pac. 742.
5 Carroll County v. O'Connor, 137 Ind. 622, 35 N. E. 1006, 37 N. E. 16.
6 Schliess v. Grand Rapids, 131 Mich. 52, 90 N. W. 700.
7 Duncan v. Cordley, 199 Mass. 299, 17 L. R. A. (N.S.) 697, 85 N. E. 160.
8 Mannix v. Tryon, 152 Cal. 31, 01 Pac. 983.
9 Sully v. Pratt, 106 La. 601, 31 So. 161.
10 Bryson v. McCone, 121 Cal. 153, 53 Pac. 637; Hills v. Farmington, 70 Conn 450, 39 Atl. 705; Donergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S. W. 1061 [rehearing denied, Donergan v. San Antonio Loan & Trust Co., 106 S. W. 876].
11 Donergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S. W. 1061 [rehearing denied, Donergan v. San Antonio Loan & Trust Co., 106 S. W. 876].
12 Gilbox v. Merrill, - Vt. - , L. R. A. 1918F, 387, 104 Atl. 10; Novelty Mill Co. v. Heinzerling, 39 Wash. 244, 81 Pac. 742.
13 MacKnignt-Flintic Stone Go. v.
New York, 160 N. Y. 72, 54 N. E. 661.
14 Harlow v. Homestead, 104 Pa. St. 57, 45 Atl. 87.
15 Fairman v. Ford, 70 Vt. 111, 39 Atl. 748.
16 Skalsky v. Johnson, 138 Minn. 275, L. R. A. 1918A, 1084, 164 N. W. 978; Omaha, etc., Co. v. Burns, 49 Neb. 229, 68 N. W. 492.
See also, Poland v. Thomaston Face & Ornamental Brick Co., 100 Me. 133, 60 Atl. 795.
If an abundant supply of water is obtained, the fact that its quality makes it unfit to use does not prevent the contractor from recovering. Skalsky v. Johnson, 138 Minn. 275, L. R. A. 1918A, 1084, 164 N. W. 978.
17 Electric Lighting Co. v. Elder, 115 Ala. 138, 21 So. 983.