O. W. Grun Roofing & Construction Co. v. Cope

Texas Court of Civil Appeals · Contracts

Contractssubstantial performancebuilding contractsgood and workmanlike manneruniform color roofmaterial breachcost of curequantum meruit

Facts

Defendant contracted to install a new roof on plaintiff's home for $648 using shingles described as "russet glow," which defendant defined as a brown varied color, and defendant admitted it was obligated to install a roof of uniform color. After installation, the roof showed yellow streaks on several sides; defendant removed and replaced some shingles, but the replacements still did not match and the roof continued to look patched rather than newly replaced. There was testimony that after nine or ten months the roof remained streaky on three sides, and evidence permitted an inference that matching shingles could not be obtained and that only a completely new roof would produce uniform coloration. Although the roof was substantial and weatherproof, the jury found defendant had not performed in a good and workmanlike manner, had not substantially performed, and that the reasonable cost of proper performance was $777.60.

Issue

Whether the evidence conclusively established that defendant substantially performed the roofing contract, despite the roof's nonuniform color, so that defendant could recover the contract price or at least recover in quantum meruit. The court also considered whether defendant could challenge the damages submission and sufficiency of the evidence supporting the cost-of-cure finding.

Rule

A contractor substantially performs only if, in good faith, he intended to comply with the contract and has done so such that the defects are not pervasive, do not deviate from the general plan contemplated for the work, and are not so essential that the contract's object and purpose cannot, without difficulty, be accomplished by remedying them. Permissible deviations are inadvertent, unintentional, not due to bad faith, do not impair the structure as a whole, and are remediable without material damage to other parts of the building; a contractor whose performance is so deficient that it can be remedied only by completely redoing the contracted work has not established substantial performance as a matter of law.

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

In San Antonio, Elena Torres hired Blue Mesa Exterior Works to install custom cream-colored stucco on her home so the finish would appear smooth and uniform. After completion, large sections on three sides cured in visibly different shades, creating a blotchy, patched look, and the evidence shows the only way to achieve the promised uniform appearance is to remove and redo the entire stucco job. The house remains structurally sound and weather-resistant.

If Blue Mesa sues for the contract price and argues it substantially performed because the house is fully protected from the elements, which is the strongest answer?

Explanation. The majority treated promised appearance as potentially part of the contract's essence, especially in home construction. Substantial performance requires defects that are not pervasive, do not deviate from the general plan, and can be remedied without difficulty. Where the only cure is completely redoing the contracted work, the contractor has not established substantial performance as a matter of law, even if the structure is otherwise functional.