Leonard v. Home Builders

SHAW, J.

The defendant and the plaintiff executed an agreement in writing dated March 11, 1910, whereby the defendant agreed that it would, before June 15, 1910, erect for the plaintiff, in a good and workmanlike manner, a dwelling-house on a certain lot, in accordance with plans and specifications agreed on between them, and would thereupon sell said lot and house to plaintiff for the sum of $2,750; $232.50 thereof to be paid in cash and the balance to be paid in installments of $25 each month until the whole, with eight per cent interest, was paid, whereupon the property was to be conveyed to plaintiff.

The house was built in due time, the payments were made in full, and the lot was conveyed to plaintiff. This action is to recover of defendant the sum of two thousand dollars as damages alleged to have been caused by the breach by the defendant of its agreement to erect the house in a good and workmanlike manner. It is alleged that certain faulty and imperfect work was done and that certain imperfect materials were used in the construction of the building, whereby the

[67]

plaintiff was damaged in the sum named. The answer admits the execution of the contract, the erection of the building, the making of the payments and the conveyance of the lot to plaintiff. It denies the alleged breaches of the covenant to erect the house in a good and workmanlike manner and alleges that on the completion of the house the plaintiff accepted it, took possession and moved into it, with full knowledge of its condition and of the kind of work and materials used in its construction, and afterward, with full knowledge, paid to defendant the full balance of the price.

Upon the trial the court stated that it would first hear evidence for the plaintiff “with regard to the final payment of the balance due under the agreement in evidence, and as to the character of the same being voluntary or involuntary.” Evidence in behalf of the plaintiff was then given to the effect that he made full payment of the price of the house and lot on February 19, 1912; that at that time he had full knowledge of all the facts with regard to the building erected on the lot by the defendant; that defendant made no threats and exercised no duress to obtain said payment; that he was under no compulsion except by the terms of the agreement, and that at the time of making said payment, which amounted to $2,252.63, plaintiff informed defendant in writing that payment was involuntary; that it was made under protest, and that plaintiff retained a claim against defendant for the “defective construction, etc.,” of the house and that the payment was not made “in relinquishment, abandonment, release, or prejudice of or to said claims. ’ ’ The agreement made time of the essence of the contract, and provided for a forfeiture of all plaintiff’s rights upon the breach by him of any one of its terms. There had been no breach by him, so far as appears. Plaintiff then stated that he had no further proof as to the character of the payment, and he offered to prove the other allegations of his cause of action.