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Carter v. Sherburne Corp. - 132 Vt. 88, 315 A.2d 870 (1974)

Rule:

Time is not of the essence in a building or construction contract in the absence of an express provision making it such. Construction contracts are subject to many delays for innumerable reasons, the blame for which may be difficult to assess. The structure becomes part of the land and adds to the wealth of its owner. Delays are generally foreseen as probable; and the risks thereof are discounted. The complexities of the work, the difficulties commonly encountered, the custom of men in such cases, all these lead to the result that performance at the agreed time by the contractor is not of the essence.

Facts:

The contractor initiated an action against the developer for payment for work done and materials furnished by him under several construction contracts. The trial court found that the contractor performed other work for the developer without compensation under a promise for additional work, which the developer did not fulfill. On appeal, the developer argued that the trial court erred in its ruling that the contractor was in substantial compliance under his contracts, even though he failed to perform within the specified time. In addition, defendant claimed that parole evidence was improperly admitted when determining the contractor's rights based on the theory of quantum meruit.

Issue:

  1. Was the element of time material in determining whether or not the contractor substantially complied with his obligations under the contracts?
  2. Was the parole evidence improperly admitted in determining the contractor’s rights?

Answer:

1) No. 2) No.

Conclusion:

The court affirmed the judgment of the lower court.. None of the contracts included express language making time of the essence, and nothing precluded the operation of the general rule that time was not of the essence in a building or construction contract in the absence of an express provision making it such. Furthermore, most of the delays were due to the developer's action. The court also held that the parole evidence rule did not preclude, as between original parties, proof of failure of consideration.

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