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.
In order to amount to substantial performance, the actual performance must conform so closely to the terms of the contract that the variance therefrom is relatively immaterial and that the adversary party has received for practical purposes the benefits for which he contracted.1 It is said, on the other hand, that the amount of damage is not conclusive as to the question of substantial performance.2 A technical breach which does not result in damage is, of course, consistent with substantial performance.3
11 See Sec. 2782.
12 See Sec. 2782 and 2780 et seq. 13 See ch. LXXXVIII.
1 Massachusetts. Jeffries v. Jeffries, 117 Mass. 184.
New York. King v. Knapp, 59 N. Y. 462.
Pennsylvania. Harris v. Sharpies, 202 Pa. St. 243, 58 L. R. A. 214, 51 Ail. 065.
South Dakota. Symms Powers Co. v. Kennedy, 33 S. D. 355, 140 N. W. 570.
Wisconsin. Manthey v. Stock, 133 Wis. 107, 113 N. \V. 443; Whalen v. Eagle Lime Products Co., 155 Wis. 26, 143 N. W. 689.
2 Crouch v Cutmann, 134 N. Y. 45, 30 Am St. Pep COS, 31 N. E 271 [discussing, Phillip v. Gallant, 62 N. Y. 2571.
A greater variance between the actual performance and the performance provided for by the contract may be allowed if the contract shows on its face,4 as by the use of such a term as "about,"5 that it is intended merely as a general guide and not as a rigid requirement. In like manner, by a rather liberal application of principles of construction, provisions fixing the time of performance are frequently held not to be mandatory, but merely to indicate what is regarded as a reasonable time.6
On the other hand, the actual performance must be more than a mere partial performance of the contract.7 In theory, at least, the doctrine of substantial performance is not intended to abrogate the general rule that a party can not recover on a contract unless he has performed precedent covenants or unless he is at least ready and willing to perform all concurrent covenants and notifies the adversary thereof.8 The difficulty in laying down abstract rules in greater detail in determining the existence of substantial performance in cases as they arise, which has induced some of the courts to say that substantial performance is incapable of definition,9 makes it advisable to consider such further questions in connection with the various types of contract in the performance of which questions of substantial performance have arisen.10
The fact that the actual performance is as beneficial financially to the adversary party as the performance of the contract would have been, does not of itself show that the contract is performed substantially,11 since the adversary party has a right to bargain for the benefits which he wishes to obtain under the contract; and he can not be compelled to accept benefits of a different sort even though they may be as advantageous to him financially. If a certain specific result has been guaranteed and such result is not attained, the contract can not be said to be performed substantially, even though the stipulation for such result may have been unwise or unnecessary.12 In cases of this sort, the obtaining of such result is almost an express condition precedent to recovery, rather than a mere covenant to perform in a certain way.13 The test for determining the existence of substantial performance is said to be whether compensation to the party not in default by an' abatement of the contract price would give him the benefits for which he contracted in substance if not in outward form.14
3 Alabama. Singer Mfg. Co. v. McLean, 105 Ala. 316, 16 So. 912; Catan-zano v. Jackson, - Ala. - , 73 So. 510.
Illinois. Morgan Park v. Gahan, 136 111. 515, 26 N. E. 1085; Evans v. Howell, 811 111. 85, 71 S. E 854.
Utah. Foulger v. McGrath, 34 Utah 86, 95 Pac. 1004
Wisconsin. Crawford v. Witherbee, 77 Wis. 419, 9 L. R A. 561, 46 N. W. 545; Foeller v. Heintz, 137 Wis. 169, 24 L. R. A. (N.S.) 327, 118 N. W. 543.
4 Kenan v. Yorkville Cotton Oil Co., 109 S. Car. 462, 1 A. L. R. 1387, 96 S. E. 524.
5 Kenan v. Yorkville Cotton Oil Co., 109 S Car. 462, 1A.LR. 1387, 96 S. E. 524.
6 See Sec. 2103 et seq.
7 Manning v. School District, 124 Wis. 84, 102 N. W. 356.
8 See ch. LXXXIV.
9 See Sec. 2780.
10 See Sec. 2784 et seq.
1 1 Connor v. Trapp, 127 Ia. 742, 104 N. W. 333.