Law School Case Brief
O. W. Grun Roofing & Constr. Co. v. Cope (1975) - 529 S.W.2d 258 (Tex. Civ. App. 1975)
One of the most obvious factors in determining if a contract has been substantially performed is the extent of the nonperformance. The deficiency will not be tolerated if it is so pervasive as to frustrate the purpose of the contract in any real or substantial sense. The doctrine does not bestow on a contractor a license to install whatever is, in his judgment, "just as good." The answer is arrived at by weighing the purpose to be served, the desire to be gratified, the excuse for deviating from the letter of the contract and the cruelty of enforcing strict adherence or of compelling the promisee to receive something less than for which he bargained.
Plaintiff homeowner sued defendant roofing company to set aside a mechanic's lien filed by defendant and for damages for breach of contract alleging that defendant failed to perform a contract to install a new roof on plaintiff's home. Defendant filed a cross-claim alleging plaintiff breached the contract by failing to pay. The trial court awarded plaintiff homeowner damages for breach of contract, denied recovery to defendant on a cross-claim for breach of contract and set aside a mechanic's lien filed by defendant. Defendant roofing company appealed.
Did defendant fail to perform his contract in a good and workmanlike manner?
The appellate court affirmed, holding that defendant failed to substantially perform on the contract. It said that plaintiff contracted for something which exactly satisfied her, expressed those wishes to defendant and should not have been compelled to accept something else. The court said that the defendant did not have license to install whatever in his judgment was "just as good" as the contract for which plaintiff bargained.
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