Kirkland v. Archbold

Ohio Court of Appeals · Contracts

Contractsbuilding contractssubstantial performancequantum meruittrial procedureentire contractseverabilityprogress payments

Facts

The plaintiff contracted in writing on August 2, 1949, to make specified alterations and repairs to the defendant's dwelling for $6,000, with scheduled progress payments. The plaintiff claimed he began work in early August 1949 and was wrongfully ejected on November 5, 1949, after performing work and furnishing materials allegedly worth $2,985, of which only $800 had been paid. The defendant contended the plaintiff was attempting to plaster before first installing rock wool and rock lathe on the outside walls as required by paragraph 4, and also claimed much of the work was unsatisfactory and unworkmanlike. The trial court found the plaintiff, not the defendant, was in default, but nevertheless awarded him the unpaid $200 balance of the first $1,000 progress payment on the theory that the progress-payment clause was severable and that the defendant's $800 payment admitted ten days of satisfactory work.

Issue

Whether a contractor found to be in default and lacking substantial performance may recover part of the contract price because the contract contains progress-payment provisions. Also, whether the trial court committed reversible error by conducting the trial largely on the premises outside the courtroom and relying on observations not preserved in the record.

Rule

A contract to perform specified repairs and improvements for a lump sum is entire, and a schedule of progress payments based on stages of work does not make it severable. A contractor in default who has not substantially performed cannot recover on the contract for partial performance, though relief may be available on a quantum meruit or quasi-contract theory for the reasonable value of benefits conferred less the other party's damages. A court may view premises as authorized by statute, but it may not conduct the trial outside the courtroom in a way that makes a complete reviewable record impossible.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Columbus, Ohio, Naomi Reed hired Daniel Voss to renovate her duplex for a total price of $48,000. Their written agreement listed payments of $12,000 after demolition, $12,000 after framing, $12,000 after interior finishes, and $12,000 thirty days after completion; Daniel stopped after partial framing, and the court finds he materially breached before substantial performance.

If Daniel sues for the unpaid framing installment under the contract, what is the strongest argument against recovery?

Explanation. The majority treated a lump-sum building contract as entire where the contractor promised a defined body of work for one total price. A progress-payment schedule tied to stages of work does not convert that agreement into a severable contract. Because Daniel materially breached and did not substantially perform, he cannot recover part of the contract price on the contract merely by pointing to an installment clause. (Derived from Kirkland v. Archbold (n.d.).)