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.
- Performance less than substantial. A contract of employment is not performed substantially where the employe, during each month of his employment, embezzles money belonging to his employer.1 Hence, under a contract of hire from month to month, the employe can recover nothing. A contract to lay water pipes through the land of a person, and to close the trenches up well and sufficiently, and make good the land and premises, is not performed substantially where the trenches are so filled up that the ground there is in places two feet above the original level.2 A contract to run a boundary line between two adjoining lots, and then to retrace it, is not substantially performed where it is run and the person running the line then sights back along the stakes and decides that the line is straight.3 A contract to perform work and labor for a specified compensation, must be performed substantially, at least in order to justify recovery.4 An architect who is to furnish plans and specifications for a building and an estimate of its probable cost, can not recover if the actual cost of the building greatly exceeds his estimate.5 So if he is employed to draw plans for a building at a cost not to exceed four thousand, five hundred dollars, he can not recover if he draws plans for a building estimated to cost more than eight thousand dollars.6 If the owner of realty has agreed to pay to a broker all in excess of a specified amount for which the broker can sell such realty, such contract is not performed substantially by exchanging such realty for other realty at an agreed valuation.7 A contract whereby the owner of land agrees to pay to an agent as commission everything in excess of ten dollars per acre for which such agent might be able to sell such land is an entire contract; and if the agent sells a part of such tract, he can not recover compensation at the contract rate until he has sold the entire tract.8 If an architect is employed to draw plans for a building, which is not to cost over twenty-five thousand dollars, such contract is not performed substantially if the plans are of such a character that the lowest bid is thirty-five thousand dollars.9 A contract of employment as manager is not performed substantially if the employer reduced the employe to a sales clerk, although he offers to pay the salary provided for in the original contract.10 Plans and specifications which do not show the quality of material and workmanship, which do not specify in what condition the concrete is to be measured, which does not indicate the materials to be used in electric wiring or the location of the wires, are so indefinite that they could not be the basis of a valid contract; and the architect can not recover from the owner for preparing such plans.11
3 Melin v. Woolley, 103 Minn 498, 22 L. R. A. (N.S.) 595, 115 N. W. 654, 946
4 Milam v. Williams, 73 W Va. 467, 80 S. E. 770.
5 Hazzard v. Morrison, 104 Tex. 580, 143 S. W. 142.
6 Garrett v. Goff, 61 W. Va. 221, 56 S. E. 351.
7 Minge v. Green, 176 Ala. 343, 58
So. 381; Tebeau v. Ridge, 261 Mo. 547, L. R. A. 1915C, 367. 170 So. 871.
8 Murphy v Hohne, 73 Fla. 803, L. R. A 1917F, 594, 74 So. 073; Lucas v Scott, 41 0. S. 636; Kurath v. Jackson, 60 Or. 203, 38 L. R. A. (N.S.) 1195, 118 Pac. 192; Haden v. Falls, 115 Va. 770, 80 S. E. 576.
1 Peterson v. Mayer, 46 Minn. 468, 13 L. R. A. 72, 40 N. W. 245.
2 Chisholm v. Halifax, 20 N. S. 402,
3 Wheeler v. State, 109 Ala. 56, 10 So. 003.
4 Jordan v. Hill, 172 Ia. 414, 154 N. W. 570; Graham v. Bell-Irving, 46 Wash. 607. 01 Par. 8.
5 Feltham v. Sharp, 99 On. 260, 25 S. E. 610; Graham v. Bell-Irving, 46 Wash. 607, 01 Pac. 8.
6 Emerson v. Kneezell (Tex. Civ. App.), 62 S. W. 551.
7 Jordan v. Hill, 172 Ia. 414, 154 N. W. 679.
8 Bentlcy v. Edwards, 125 Minn. 179, 51 L. R. A. (N.S.) 254. 146 N. W. 347. (Since plaintiff did not plead or prove the reasonable value of his services, the court did not deride whether he could recover in quantum meruit.)
9 Graham v. Bell-lrving, 46 Wash. 607, 01 Pac. 8.
10 Cooper v. Stronge & Warner 111., 111 Minn. 177, 126 N. W. 641.