Rischard v. Miller

SHAW, J.

—The plaintiff appeals from the judgment. The complaint alleges that the plaintiff and the defendant made a contract whereby the defendant undertook to construct a dwelling-house on a lot belonging to the plaintiff, in accordance with certain plans and specifications, for the sum of two thousand six hundred dollars; that the defendant had completed the building but had failed to construct it according to the plans and specifications, whereby the plaintiff was damaged in the sum of $1,378.

The answer denies the allegations of the complaint concerning the failure to construct the building as provided in the plans and specifications. The defendant also filed a cross-complaint alleging that by the terms of the contract sued on, the sum of $1,250 of the contract price was to be paid to the defendant by the plaintiff thirty-five days after notice of completion, and that this payment was to be made by the conveyance from the plaintiff to the defendant of a lot adjoining that upon which the building was constructed, free and clear of encumbrance, valued in the contract at $1,250; that the defendant had constructed the building in accordance with the terms of the contract and gave notice of completion thereof to the plaintiff, and that plaintiff had refused to convey to the defendant, as the final payment thereon, the said lot, as he had agreed to do. Thereupon he prayed for a decree enforcing performance of the agreement to convey the said lot to him.

The court made findings in accordance with the allega^ tions of the cross-complaint, and that, although in a few minpr and trivial matters the building did not strictly and technically comply with the terms of the contract, the departure was not willful nor intentional on the part of the

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defendant, and that the defects were capable of being easily-remedied to conform to the terms of the contract at an expense not exceeding $99.50. Thereupon the court concluded that the defendant was entitled to have the contract enforced in his favor, with an abatement of $99.50 on the contract price on account of the defects found to exist, by the conveyance of said lot by the plaintiff to the defendant, upon the payment by defendant to the plaintiff of the difference between the sum of $1,250, at which the lot was to be accepted as payment, and the amount found due and unpaid on the contract price. Judgment was given accordingly in favor of the defendant for specific performance.