At common law in England the original rule was that strict and literal performance was necessary to enable the party who alleged performance of a precedent covenant on his part to recover against the adversary party;1 and in many cases the courts of this country have laid down the same rule as the original common-law rule.2 In equity, on the other hand, the courts held that if a party "gets substantially that for which he bargains, he must take a compensation for a deficiency in value," and accordingly, on the theory of substantial performance, they frequently decreed specific performance and rendered, allowed or imposed compensation for a deficiency where there was no strict and literal performance.3 In modern law the equitable theory rather than the original common-law theory has prevailed, and it is held by the great weight of authority that recovery may be had without strict and literal performance, if the party who seeks to recover can show substantial performance.4 The existence of the doctrine of substantial performance has been denied in earlier cases,5 and this denial is occasionally reiterated;6 but the doctrine must nevertheless be regarded as thoroughly established at modern law by the great weight of authority. It is therefore error to charge the jury that unless the plaintiff has been discharged' by impossibility and the like, he can recover only if he has shown performance of the contract according to its terms, since such a charge eliminates substantial performance of the contract.7

10 Schwede v. Hemrich, 29 Wash. 124, 60 Pac. 643.

11 Speliopoulos v. Schick, 129 Wis. 656, 109 N. W. 568.

1 Dorrington v. East, 1 Yelv. 87; Fairer v. Nightingal, 2 Esp. 639; Ellis v. Hamlen, 3 Taunt. 52; Lord v. Stephens, 1 Y. & Coll. Exch. 222; For-man v. The Liddesdale [1000], A. C. 190.

2 Colorado. Lombard v. Overland Ditch and Reservoir Co, 41 Colo. 2.53, 92 Pac. 605.

New Hampshire. Bruce v Snow, 20 N. IT. 4S4.

New York. Dauchey v Drake, 85 N. Y. 407.

Ohio. Bees v. Smith, 1 Ohio 124.

Oregon. White v. Price, 56 Or. 376, 108 Pac. 776.

For a case in which substantial performance was recognized in equity but not at law, see Bees v. Smith, 1 Ohio 124

3 Dyer v. Hargrave, 10 Ves. Jr. 505; Cleaton v. Gower, Cases Temp. Finch 164; Howland v. Norris, 1 Cox Ch 59; Calcraft v. Roebuck, 1 Ves. Jr. 221; Guest v. Homfray, 5 Ves. Jr. 818 (obiter); McQueen v. Farquhar, 11 Ves. Jr. 467; Stapylton v. Scott, 13 Ves. Jr. 425; Green v. Low, 22 Beav. 625; Wilkinson v. Clements, L. R. 8 Ch. 96; Hayward v. Leonard, 24 Mass. (7 Pick.) 181, 16 Am. Dec. 260; Heckmann v Pinkney, 81 N. Y 211.

For substantial performance as to title and as to time of conveyance, see Bees v. Smith, 1 Ohio 124.

4 United States. Woodruff v. Hough, 01 U. S. 596, 23 L. ed. 332; Kauffman v. Raeder, 108 Fed. 171, 54 L. R. A. 247, 47 C. C. A. 278; Elizabeth v. Fitzgerald, 114 Fed. 547, 52 C. C. A. 321; Destructor Co. v. Atlanta, 232 Fed. 746.

Alabama. Burnett Cigar Co. v. Art Wall Paper Co., 164 Ala. 547, 51 So. 263; Catanzano v. Jackson, - Ala. - , 73 So. 510.

Arkansas. Fitzgerald v. La Porte, 64 Ark. 34, 40 S. W. 201.

California. Griffith v. Happersberger, 86 Cal. 605, 614, 25 Pac. 137, 487; Hill v. McKay, 94 Cal. 5, 29 Pac. 406; Connell v. Higgins, 170 Cal. 541, 150 Pac. 769; Smith v. Mathews Const. Co., - Cal. - , 179 Pac. 205.

Colorado. Lombard v. Overland Ditch & Reservoir Co., 41 Colo. 253, 92 Pac. 695.

Connecticut. Morehouse v. Bradley, 80 Conn 611, 69 Atl 937; Daly v. New Haven Hotel Co, 91 Conn 280, 99 Atl. 853; Fagerholm v. Kielson, - Conn. - , 106 Atl 333.

Illinois. Evans v. Howell, 211 111. 85, 71 N. E. 854; Bloomington Hotel Co v Garthwait. 227 111 613, 81 N. E 714; Concord Apartment House Co. v. O'Brien. 228 111. 360, 81 N E 1038; Peterson v Pusey, 237 111. 204, 86 N. E. 692; Erikson v. Ward, 266 111 259, 107 N. E 593.

Iowa. Aetna, etc, Works v. Kossuth County, 79 Ia. 40, 44 N. W. 215; Old Settlers' Inv. Co. v. Marshall Vinegar, Pickle & Soap Co, 137 Ia. 558, 113 N. W. 326; Birdsall v. Perry Gas Works, 181 Ia. 1268, 161 N. W. 304.

Kansas. Lofsted v. Bohman, 88 Kan 660, 129 Pac. 1168; Sipe v. Sipe, 102 Kan. 742, L. R. A. 1018E, 1029, 173 Pac 13.

Kentucky. Vincennes Bridge Co. v. Walker, 181 Ky. 651, 205 S. W. 778.

Louisiana. Dugue v. Levy, 114 La. 21, 37 So. 095. Maine. Hattin v. Chase, 88 Me. 237..

33 Atl 989.

Maryland. Nes v. Union Trust Co., 104 Md. 15, 64 Atl. 310.

Massachusetts. Hennessey v. Preston, 219 Mass. 61, 106 N. E. 570.

Michigan. Phelps v. Beebe, 71 Mich. 554, 39 N. W. 761.

Minnesota. Leeds v. Little, 42 Minn. 414, 44 N. W. 309; Hoglund v. Sorte-dahl, 101 Minn. 359, 112 N. W. 408 (obiter); Peet v. East Grand Forks, 101 Minn. 518, 112 N. W. 1003.

New York. Flaherty v. Miner, 123 N. Y. 382, 25 N. E. 418; Crouch v. Gutmann, 134 N. Y. 45, 30 Am. St. Rep. 608, 31 N. E. 271; Steel Storage & Elevator Const. Co. v. Stock, 225 N. Y. 173, 121 N. E. 786 (obiter).

North Carolina. Russell v. Iredell County, 123 N. Car. 204, 31 S. E. 717.

North Dakota. Torgerson v. Hauge,

34 N. D. 646, 3 A. L. R. 164, 159 N. W. 6.

Ohio. Goldsmith v. Hand, 26 O. S. 101; Kane v. Stone Co., 39 O. S. 1.

Oklahoma. Weibener v. Peoples, 44 Okla 32, 142 Pac. 1036.

Pennsylvania. Gallagher v. Sharp-less, 134 Pa. St. 134, 10 Atl. 491; Moore v Carter, 146 Pa. St. 492, 23 Atl. 243; Morgan v. Gamble, 230 Pa. St. 165, 79 Atl. 410; Otis Elevator Co. v. Flanders Realty Co., 244 Pa. St. 186, 90 Atl. 624.

South Carolina. Kenan v. Yorkville Cotton Oil Co., 109 S. Car. 462, 1 A. L. R. 1387, 96 S. E 524.

Tennessee. Carolina Spruce Co. v. Black Mountain R. Co., 139 Tenn. 137, 201 S. W. 154.

Texas. Linch v. Elevator Co., 80 Tex 23, 15 S. W. 208.

Utah. Foulger v. McGrath, 34 Utah 86, 95 Pac. 1004.

In some jurisdictions the doctrine of substantial performance was first recognized at law in building contracts.8 While language is occasionally used which seems to indicate that the courts feel that the doctrine of substantial performance at law is limited to building contracts, or at least finds its ordinary application in such contracts,9 the doctrine is not thus limited, but it applies to contracts of other classes.10 One of the reasons which induced the courts to apply the doctrine of substantial performance to building contracts before they applied it to contracts of other classes, was probably the fact that the work which was done under a building contract to the material which was furnished thereunder was absolutely lost to the contractor unless some compensation in money could be given to him. In contracts for the sale of chattels and the like, the party who is not in default may be required to permit the party in default to regain possession of the chattels and the title thereto, if such chattels are not in compliance with the terms of the contract; and the law may give to the party who is not in default the choice between returning such chattels and accepting them as performance of the contract and as waiving at least his right to avoid the contract for any deficiency therein.11 In building contracts, on the other hand, the materials become a part of the realty and the labor which is expended is applied to the realty. Neither materials nor labor can be restored to the contractor. Even if the materials could be restored to him in theory, it would, as a rule, be practically a denial of his right to recover; since ordinarily the cost of removing the material would exceed the value of the material in the condition in which it would be after such removal. For these reasons the doctrine of substantial performance was first recognized in building contracts.12

Washington. Lavanway v. Cannon, 37 Wash. 593, 79 Pac. 1117.

Wisconsin. Meincke v. Falk, 61 Wis. 623, 50 Am. Rep. 157, 21 N. W. 785; Manning v. School District, 124 Wis. 84, 102 N. W. 356; Manthey v. Stock, 133 Wis. 107, 113 N. W. 443 (obiter); Foeller v. Heintz, 137 Wis. 169, 24 L. R. A. (N.S.) 327, 118 N. W. 543.

5 Blakeslee v. Holt, 42 Conn. 226 (obiter).

The opposite view was expressed in earlier Connecticut cases such as Smith v. Scott's Ridge School District, 20 Conn. 312, and in later cases such as Pinches v. Swedish Evangelical Lutheran Church, 55 Conn. 183, 10 Atl. 264, and Chariott v. McMullen, 84 Conn. 702, 81 Atl. 65.

6 It has been repeated as to English and Canadian law in Sherlock v. Powell, 26 Ont. App. 407.

It is said that, to recover on a contract, performance must be shown. This, probably, is not meant to exclude substantial performance. Eyerman v. Mount Sinai Cemetery Asso., 61 Ma 489.

It is said that, to recover on general assumpsit, full performance must be shown. This is probably not intended to exclude substantial performance. Blankenship v. Decker, 34 Mont. 202, 85 Pac. 1035; Riddell v. Peck-Williamson Heating & Ventilating Co., 27 Mont. 44, 69 Pac. 241; Cook v. Gallatii Railroad Co., 28 Mont. 509, 73 Pac. 131; McFarland v. Welch, 48 Mont. 196, 136 Pac. 394; Waite v. Shoemaker, 50 Mont. 264, 146 Pac. 736; De Young v. Benepe, - Mont. - , 176 Pac. 609.

7 Fagerholm v. Nielson, - Conn. - , 106 Atl. 333.

8 See Sec. 2784.

In equity the doctrine of substantial performance seems to be recognized first in contracts for the sale of realty. See Sec. 2785.

9 Manitowoc Steam Boiler Works v. Manitowoc Glue Co., 120 Wis. 1, 97 N. W. 515; Foeller v. Heintz, 137 Wis. 169, 24 L. R. A. (N.S.) 327, 118 N. W. 543.

10 See Sec. 2785 et seq.