This is fun. Kent actually never filed suit; the original suit was filed by Jacobs & Young when Kent refused to make the final payment after the architect did not certify the property as complete.
True, which I picked up on my second read through. So just amend my previous comment that he was "pissed off enough to sue" to "he was pissed off enough to not pay."
While it would be one thing if the plaintiff never inspected the pipe, it seems to me another that the plaintiff, sub-contractor, architect, and others all inspected the pipe and found it to be of the correct type; as he had instructed the sub-contractor to supply this type of pipe, and upon inspection it was found that he had, it was reasonable for the plaintiff to believe that the sub-contractor would continue to do his job as directed, and as was previously deemed acceptable. It seems less reasonable that the plaintiff should have to subsequently personally inspect over 2000 feet of pipe in order to ensure this point.
I don't find any of this to be relevant. A mistake is a mistake, and they should be required to correct the entirety of their mistake. Even if they inspected it 5,000 times, that doesn't correct their mistake. If a building is built and inspected 5,000 times, yet still collapses due to faulty workmanship, are the builders not at fault because they inspected?
I agree with the majority on the point that the error was neither willful nor grossly negligent on the part of the plaintiff,
I agree, but I also find this to be irrelevant, as the contract was for Reading pipe and Reading pipe was not used. The contract was breached. When payment depends on performance of the contract, and that contract is not performed, payment cannot be due. As I will quote later, to hold otherwise would be creating a new contract.
In this case, there was an error on the part of the contractor, but the error was reasonable and the assessed harm is negligible; if in the course of such a project an error is made that violates a stipulation of the contract, but the error was made only after diligent steps were taken to ensure that such an error would not be made, then the responsibility of the contractor for the error is greatly mitigated.
Someone somewhere along the way made a mistake. Kent is entitled to have his contract honored, and the rest of the people can sue each other until they find who is to blame. Kent, on the other hand, has done nothing wrong, but rather has been wronged because he was not given what he ordered. The man just wants his Reading pipe! Why he ordered it is irrelevant. Maybe he has a Reading pipe fetish - who knows? It doesn't matter. He contracted someone to install Reading pipe
, and, it can be inferred, would not have agreed to hire Jacob & Young if they had not agreed to that stipulation.
As the majority states, "It is true that in most cases the cost of replacement is the measure (Spence v. Ham, supra). The owner is entitled to the money which will permit him to complete, unless the cost of completion is grossly and unfairly out of proportion to the good to be attained. When that is true, the measure is the difference in value."
The good to be attained is that the contract will be honored. The Reading pipe requirement was specifically mentioned in the contract.
There were, in essence, two parts of the contract:
1. Do my plumbing
2. Use Reading pipe
Essentially half of the contract was not met.
If the contractor had done their job right the first time, there would be no problems with the "cost of completion [being] grossly and unfairly out of proportion to the good." But he didn't. He (through his sub-contractor) messed up. The case states that Reading pipe was not used due to "inattention and oversight" by the sub-contractor. Since when are inattention and oversight excuses for breaching a contract? The excess costs currently faced are due to that "inattention and oversight" (everyone he hired is his responsibility), not due to any unreasonable demands made by Kent. Now if the contractor wants to sue the sub-contractor to recoup his losses, then he should, but as it stands now, he has a contract with Kent in which a key stipulation
Basically, I agree that anyone can make stipulations in a contract. But I also believe if the contractor takes reasonable steps to ensure the fulfillment of those stipulations, and after such reasonable steps he fails to fulfill them to the letter, and where the subsequent harm is negligent, that the contractor should be entitled to the original payment less damages, which in this case are none.
The court has, apparently, contradicted itself with this case.Smith v. Brady
“I suppose it will be conceded that every one has a right to build his house, his cottage or his store after such a model and in such style as shall best accord with his notions of utility or be most agreeable to his fancy. The specifications of the contract become the law between the parties until voluntarily changed. If the owner prefers a plain and simple Doric column, and has so provided in the agreement, the contractor has no right to put in its place the more costly and elegant Corinthian. If the owner, having regard to strenght and durability, has contracted for walls of specified materials to be laid in a particular manner, or for a given number of joists and beams, the builder has no right to substitute his own judgment or that of others. Having departed from the agreement, if performance has not been waived by the other party, the law will not allow him to allege that he has made as good a building as the one he engaged to erect. He can demand payment only upon and according to the terms of his contract, and if the conditions on which payment is due have not been performed, then the right to demand it does not exist. To hold a different doctrine would be simply to make another contract, and would be giving to parties an encouragement to violate their engagements, which the just policy of the law does not permit.”
There is no mention of any "good faith effort" standard. If the contract falls short, the contract falls short. The demand was reasonable. The demand was explicit. The demand was key. Therefore, the demands need to be met, and if they're not, the contract has not been met. Why should Kent be obligated to uphold the entire end of his side of the contract (payment in full) when the contractor has not upheld his?
When the contractor has not met the entire contract, he does not deserve the entire payment.
If I order a pair of Nike Air Pump Super X9000s (value $90) and I receive a pair of Walmart Air Pump Super X9000s (value $88), both shoes identical except for the branding, am I entitled to an exchange or simply a $2 keychain that makes up the difference between the value of the pairs of shoes?
BTW, I bet we sound like total douches right now.