2. Where a jury found that the contractor had substantially performed the contract, and returned a verdict for the plaintiff less the cost of the labor and materials furnished by the owner and for other omissions and defects not exceeding $570.00; and where contract price for the construction was $28,800.00, it is held that the verdict as returned by the jury does not show as a matter of law failure to substantially perform.
Contracts—architect’s refusal to issue final certificate does not preclude contractor’s right of action.
3. Upon the circumstances of the record it is held that the failure of the architect to issue a final certificate did not preclude right of action by the contractor.
Opinion filed Dec. 13, 1921. Rehearing denied Jan. 3, 1922.
Action in District court, Nelson county. Cooley, J., upon a building contract: The plaintiff has appealed from a judgment notwithstanding the verdict.
Judgment reversed and verdict ordered re-instated.
Bradford & Nash, for appellant.
The question whether a contract has been substantially performed is generally one of fact. Pitcairn v. Philip Hiss Co. 51 C. C. A. 323, 113 Fed. 492; Elizabeth v. Fitzgerald, 52 C. C. A. 321, 114 Fed. 547; Fitz- gerald v. LaPorte, 64 Ark. 34, 40 S. W. 261; West v. Sunda, 69 Conn. 60, 36 Atl. 1015; Bauer v. Hindley, 222 Ill. 319, 78 N. E. 626; BE. T. Burrowes Co. v. Crittenden, (Miss.) 37 So. 504.
A substantial performance of a building contract is sufficient. Fish v. Stubbings, 65 Ill. 492; Elizabeth v. Fitzgerald, 52 C. C. A. 321, 114 Fed. 547; Concord Apartment House Co. v. O’Brien, 228 III. 360, 81 N. E. 1038; Ramstedt v. Brooker, 113 App. Div. 45, 98 N. Y. Supp. 1044; Hahn v. Bonacum, 76 Neb. 837, 107 N. W. 1001, 109 N. W. 368; Rush v. Wagner, 34 N. Y. S. R. 798, 12 N. Y. Supp. 2; Mecham v. Baker, 34 N. Y. S. R. 535, 11 N. Y. Supp. 781, Walstrom v. Oliver Watts Constr. Co. (Ala.) 50 So. 46.
In building contracts a literal compliance with the specifications is not necessary to recovery by the contractor. Keeler v. Herr, 157 IIl. 57, 41 N. E. 750; Dugue v. Levy, 114 La. 21, 37 So. 995; Block-Pollock Iron Co. v. Cincinnati Corrugating Iron Co. 10 Ohio S. & C.
