Schindler v. Green

BUCKLES, J. This application for rehearing in this ease pretends to be based upon the ground that this court in the original opinion in the ease, filed August 14, 1905 (ante, p. 229, 82 Pac. 341), committed error in holding that the placing of two windows in the basement story of the house not immediately under the windows in the story above was unworkmanlike and was not satisfactory to defendants, and was not a trivial imperfection. These windows constituted a part of the ornamentation of this little house, as well as- of its constituent parts. Ornamentation is as much a matter of substance as any of the constituent parts, such as light and ventilation. The. testimony in the case showed, and the court below found, “that the two windows placed by plaintiff in the front portion of the basement story of said house were not directly underneath the two front windows of the upper portion of said house, which upper portion consisted of the old house after the same had been raised, and that the placing of such windows in this manner was not workmanlike. ’ ’ The testimony supports the above finding; but this court found, further, “that the failure of plaintiff to place said windows in the basement in a direct line underneath the two windows of the upper portion of said house is a trivial imperfection.” There is no evidence whatever to support this finding, and no inflexible rule of law comfpanding such deduction: Harlan v. Stufflebeem, 87 Cal. 57|1, [23525] Pac. 686. The evidence is that, as soon as defendants noticed that the windows were not properly placed, the attention of the plaintiff was called to it. He was then and repeatedly thereafter requested to change the windows and place them immediately under the ones above, but he refused to do so. When told that another would be employed to change the positions of the windows and the cost thereof would be deducted from what was due plaintiff, he replied he could do better to go to court, as defendants would have to pay counsel fees and other expenses. The evidence shows the cost of changing the windows and placing them as they should be to exceed $10.

It is true there was no provision in the contract as to how these windows were to be placed, but there was impliedly in plaintiff’s contract an agreement that his work should be done in a workmanlike manner, and these windows were not placed in a workmanlike manner, and the failure to place them properly seems to indicate a want of good faith. In a Pennsylvania case, decided in Gillespie Tool Co., 123 Pa. 26, 16 Atl. 37, it is said: “The equitable doctrine of substantial performance is intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadequate, or unimportant omissions or defects. It is incumbent on him who invokes its protection to present a case in which there has been no willful omission or departure from the terms of his contract.” The spirit manifested by this plaintiff, when his attention was called to the unworkmanlike manner of setting the front windows would indicate a willfulness, and not an honest endeavor to complete his work in a workmanlike manner. In Harlan v. Stufflebeem, 87 Cal. 511, 25 Pac. 687, the court says: “If there has been no willful departure from its provisions, and no omission of any of its essential parts, and the contractor has in good faith performed all of its substantive terms, he will not be held to have forfeited his right to a recovery by reason of trivial defects or imperfections in the work performed. If the omission or imperfection is so slight that it cannot be regarded as an integral or substantive part of the original contract, and the other party can be compensated therefor by a recoupment for damages, the contractor