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 at law is, in most jurisdictions, 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 A contract to manufacture chattels to conform to a given pattern or style is enforceable if substantially performed.2 A contract to make a carriage to order "just like" another specified carriage, is said to be performed substantially if the body, style, size and general appearance of the two carriages are alike, although the manufacturer has made some minor changes which he believes to be improvements.3 This result, however, is placed on the ground that such a contract requires only a carriage of the general style, appearance and dimensions of the specified carriage, and that it leaves the builder free to improve it if he can.4 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.5 A provision that the vendee of a grain separator is to give the vendor notice when he intends to open the threshing season, so that the vendor may send down an expert to remedy defects, is substantially performed if the vendor in fact sends an expert at the time of the opening.6 A contract that manufacturing agents shall keep a patented fence in stock to fill orders taken by their selling agent, is substantially performed by their having materials and machinery for making such fence and being prepared to furnish it upon demand.7 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.8 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.9 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.10 A contract to advance thirty-three thousand dollars for bonds of a corporation is satisfied by paying eighteen thousand dollars and retiring fifteen thousand par value of old bonds of the corporation, even though only fourteen thousand dollars was paid to procure such bonds.11 A contract to sell bonds secured by first mortgage on the property of a corporation, which property at that time is incumbered by a mortgage securing a prior bond issue, is performed substantially if the great majority of the bonds of the first issue are retired and if an adequate fund is set aside for the payment of the bonds the ownership of which can not at that time be ascertained.12 A contract whereby A agrees to assign certain patents to B is substantially performed where at B's request A assigns such patents to X for B's use.13
1 United States. Gottschalk Co. v. Cattle Feeding Co., 62 Fed. 901.
California. Hill v. McKay, 04 Cal. 6, 29 Pac. 406.
Colorado. Lombard v. Overland Ditch & Reservoir Co., 41 Colo. 253, 92 Pac. 695 (obiter).
Connecticut. Morehouse v. Bradley, 80 Conn. 611, 69 Atl. 937.
Illinois. Merchants' Bldg. Imp. Co. v. Chicago Exch. Bldg. Co., 210 111. 26, 101 Am. St. Rep. 146, 71 N. E. 22; Turner v. Osgood Art Colortype Co., 223 111. 629, 79 N. E. 306 (obiter).
Kansas. Sipe v. Sipe, 102 Kan. 742, L. R. A. 1918E, 1029, 173 Pac. 13.
Maine. Ayer v. Bangor, 85 Me. 511, 27 Atl. 523.
Maryland. Nes v. Union Trust Co., 104 Md. 15, 64 Atl. 310.
Michigan. Hayes v. Stortz, 131 Mich. 63, 90 N. W. 678; Snyder v. Patton & Gibson Co., 143 Mich. 350, 106 N. W. 1106.
Minnesota. McGuire v. J. Neils Lumber Co., 97 Minn. 293, 107 N. W. 130.
Mississippi. E. T. Burrowes Co. v. Crittenden (Miss.), 37 So. 504.
Ohio. Newman v. M'Gregor, 5 Ohio 348.
New Mexico. Joseph v. Catron, 13 N. M. 202, 1 L. R. A. (N.S.) 1120, 81 Pac. 439.
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.
Wisconsin. Foeller v. Heintz, 137 Wis. 169, 24 L. R. A. (N.S.) 327, 118 N. W. 543.
2 Bailey v. Wayman, 201 Pa. St. 249, 50 Atl. 767; Meincke v. Falk, 61 Wis. 623, 50 Am. Rep. 157, 21 N. W. 785.
3 Meincke v. Falk, 61 Wis. 623, 50 Am. Rep. 157, 21 N. W. 785.
4 Meincke v. Falk, 61 Wis. 623, 50 Am. Rep. 157, 21 N. W. 785.
5 Thoubboron v. Lewis, 43 Mich. 635, 88 Am. Rep. 218, 5 N. W. 1082.
6 Hansen v. Gaar, 68 Minn. 68, 70 N. W. 853.
7 Carrington v. Waff, 112 N. Car. 115, 16 S. E. 1008.
8 Main v. Oien, 47 Minn. 89, 40 N. W. 523.
9 Ponce v. Smith, 84 Me. 266, 24 Atl. 854.
10 Harris v. Scott, 67 N. H. 437, 32 Atl. 770.
11 Franklin Trust Co. v. Electric Co., 57 N. J. Eq. 42, 41 Atl. 488.
1 2 Nes v." Union Trust Co., 104 Md. 15, 64 Atl. 310.
13 Dalzell v. Watch Case Co., 138 N. Y. 285, 33 N. E. 1071.
It is said that the doctrine of substantial performance does not extend to contracts to manufacture articles.14 Trade usage and custom are invoked, however, to show that literal performance exists where the performance falls short of literal compliance with the terms of the contract in their popular sense.15 A contract to make colortype pictures is performed literally although the borders are not perfect because of the fact that the dust in the air caused specks which could be seen by close examination.16
A small deficiency in the quantity of the goods delivered does not prevent substantial performance of a contract of sale.17 If a number of articles are sold, delivery of all but one is substantial performance.18