O. W. Grun Roofing & Construction Co., Appellant

v.

Mrs. Fred M. Cope, Appellee

Court of Civil Appeals of Texas, Fourth District, San Antonio

529 S.W.2d 258 (1975)

Cadena, Justice. Plaintiff, Mrs. Fred M. Cope, sued defendant, O. W. Grun Roofing & Construction Co. *** for damages in the sum of $1,500.00 suffered by plaintiff as a result of the alleged failure of defendant to perform a contract calling for the installation of a new roof on plaintiff's home. Defendant, in addition to a general denial, filed a cross-claim for $648.00, the amount which plaintiff agreed to pay defendant for installing the roof *** .

Following trial to a jury, the court below entered judgment awarding plaintiff $122.60 as damages for defendant's failure to perform the contract *** and denying defendant recovery on its cross-claim. It is from this judgment that defendant appeals.

The jury found (1) defendant failed to perform his contract in a good and workmanlike manner; (2) defendant did not substantially perform the contract; 3) plaintiff received no benefits from the labor performed and the materials furnished by defendant; the reasonable cost of performing the contract in a good and workmanlike manner would be $777.60. Although the verdict shows the cost of proper performance to be $777.60, the judgment describes this finding as being in the amount of $770.60, and the award of $122.60 to plaintiff is based on the difference between $770.60 and the contract price of $648.00. ***

The *** questions *** which we ***consider *** are that there is no evidence to support the finding that defendant did not perform in a good and workmanlike manner and that the evidence establishes as a matter of law that defendant substantially performed the contract. In considering these "no evidence" points, we look only to the evidence supporting the verdict. ****

The written contract required defendant to install a new roof on plaintiff's home for $648.00. The contract describes the color of the shingles to be used as "russet glow," which defendant defined as a "brown varied color." Defendant acknowledges that it was his obligation to install a roof of uniform color.

After defendant had installed the new roof, plaintiff noticed that it had streaks which she described as yellow, due to a difference in color or shade of some of the shingles. Defendant agreed to remedy the situation and he removed the nonconforming shingles. However, the replacement shingles do not match the remainder, and photographs introduced in evidence clearly show that the roof is not of a uniform color. Plaintiff testified that her roof has the appearance of having been patched, rather than having been completely replaced. ***

In view of the fact that the disparity in color has not disappeared in nine or ten months, and in view of the fact that there is testimony to the effect that it would be impossible to secure matching shingles to replace the nonconforming ones, it can reasonably be inferred that a roof of uniform coloration can be achieved only by installing a completely new roof. The evidence is undisputed that the roof is a substantial roof and will give plaintiff protection against the elements.

The principle which allows recovery for part performance in cases involving dependent promises may be expressed by saying that a material breach or a breach which goes to the root of the matter or essence of the contract defeats the promisor's claim despite his part performance, or it may be expressed by saying that a promisor who has substantially performed is entitled to recover, although he has failed in some particular to comply with his agreement.

The *** doctrine of substantial performance *** is especially common in cases involving building contracts, although its application is not restricted to such contracts. ***

It is difficult to formulate definitive rule for determining whether the contractor's performance, less than complete, amounts to "substantial performance," since the question is one of fact and of degree, and the answer depends on the particular facts of each case. ***

Although definitions of "substantial performance" are not always couched in the same terminology and, because of the facts involved in a particular case, sometimes vary in the recital of the factors to be considered, the following definition by the Commission of Appeals in Atkinson v. Jackson Bros., 270 S.W. 848, 849 (Tex. Com. App. 1925), is a typical recital of the constituent elements of the doctrine:

To constitute substantial compliance the contractor must have in good faith intended to comply with the contract, and shall have substantially done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot, without difficulty, be accomplished by remedying them. Such performance permits only such omissions or deviations from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and reconstructing.

*** What was the general plan contemplated for the work in this case? What was the object and purpose of the parties? *** Was the general plan to install a substantial roof which would serve the purpose which roofs are designed to serve? Or, rather, was the general plan to install a substantial roof of uniform color? Was the object and purpose of the contract merely to furnish such a roof, or was it to furnish such a roof which would be of a uniform color? It should not come as a shock to anyone to adopt a rule to the effect that a person has, particularly with respect to his home, to choose for himself and to contract for something which exactly satisfies that choice, and not to be compelled to accept something else. In the matter of homes and their decoration, as much as, if not more than, in many other fields, mere taste or preference, almost approaching whimsy, may be controlling with the homeowner, so that variations which might, under other circumstances, be considered trifling, may be inconsistent with that "substantial performance" on which liability to pay must be predicated. ***

In the case before us there is evidence to support the conclusion that plaintiff can secure a roof of uniform coloring only by installing a completely new roof. We cannot say, as a matter of law, that the evidence establishes that in this case that a roof which so lacks uniformity in color as to give the appearance of a patch job serves essentially the same purpose as a roof of uniform color which has the appearance of being a new roof. We are not prepared to hold that a contractor who tenders a performance so deficient that it can be remedied only by completely redoing the work for which the contract called has established, as a matter of law, that he has substantially performed his contractual obligation. ***

The judgment of the trial court is affirmed.