Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-12-21

to tile plaintiff and substantially in nc
cord with til" ciGit;tbie doctrine hat has
heretofore prevailed i'll this STATE in
analogous c uses The decisions in oih"r
states undoubtedly disclose many differ
cnt forms Of expression If not u variety
Cf opinions i'll relation TO the proper ful"
10 l." applied in adjusting the rights of
plrtvS whore services have been rem
dcrrd or materials furnished in an honest
cdd"avor t. perform a contract, nut are
found to be- at variance with IN" require
inCidS of it's express terms and yet in
some degree beneficial to the other party.
i,N the strict lul : of the common law
in such u ease. fun performance. WIS IN
doubleday required as Il condition pre-
cedcnt 30 the right of recovery. but in
most Jurisdictions the rigrr of this com
mon law rule has been RELAXED. even i'll
coiIr.S of law. especially in building con
tracts and other like agreements. where
the Defendant is practically forced to ac-
c"Pt til" result uf th'' work and relief is
granted to thr plaintiff! by applying the
equitable doctrine OF substantial per
furn'lL"".
A)th"uaht IL" plaintiff cannot recover
upon tn" contract from which lie has
departed. Vet hc may recover upon tbs
common counts for the rcaSonah,' value
| OF til" hcuoiit which upon the whole the
defendant has derived from what h" has
| done. II he crd,.tvorrd in good faith to
perform. ana did substantially perform
| III" agreement h was entitled to recover
| for ms =, rviC"S rll' contract pre-" after
d"llIrtiu% 50 much rs fhrN W"r" worth
| less. on account of such imperfect per
| Torrance of Inc contract. II" is en-
| titled IL recover tn" fair value of his
| services having regard t" and not "X-
| ct"dnE tn" contract rI.c" after t'cductinC
| tile ,lrmHgt"; sustained by the defendant
| on account Of Tie breach of the Stipull-
| tons in the contract"
In som" Of the cases, rcforcnC" is made
| 10 III" ''!"duction" ''rrcourm"nt' or set
| off, Of the defendants damages for the
| lent process or m":h"d Of aSccrtaining
| what tn" services rendered by tn" plain
| tit W"r" reasonably worth. and not
| with til" intention Of casting Unon TN"
| Defendant the burden of proving tn"
| v:.lu" of the Plaintiffs services. 1t is in
| cnrnhcnt upon the pliihtitf in such cases
| to prove. til" vahr. nf til" work done OF
! mat rinls furnished hy him. The qurs-
ton Of rocnll,m"ut. properly So termed
is rot inv ,lvrd. l;ut # the plaintiff 5
| hrca IN of the cnntrar. ic such a1 70 sue
i,ct tn. defendant 70 consequential dam
age. that MAJ h" the foundation for Il
l. gitinGttt. Il lin III rec0Upn"n'. with 70
sIcct to which III, burden of proof would
i" upon tho defendant.
| It cannot w. doubted that tho stipula-
tion for tn" srnIiy Of potahl" water and
:hc hydramt SrrViC" specified in para
graph one OF the contract WAS intended
ana understood ny tn" parties as 4 cor
dtior precedent ana that that il was t
he strictly performed each six months
| before tie de-, ndant cnuld DE ht!d lahl'
t. pay the Sirp instalment.
In view OF tn" pcculiariti"S which
| necessarily characterize tn" sal" ana de
| livery Of water through system o
water works. it IS manifest that th'
morn receipt end consumption of watol
under such Il contract would rot con
clusiy"Iy show an acceptance Of the ser
t Vic" as a performance of its contract
Considerable time might ha required t.
determine whether or not til" imnerf"c
servic. was caused by the ''unavoidahl
accidents excepted ir The contract am
under such circumstances a du" rcgar'
for the necessities of the people woIIl'
. render dierortinUan"e Of th" Us" Of tn
, water unrcascn able and il practicable
= The instruction quoted. nsifercd il
l conncction with other parts oi :h' chdrE
: gave the Jury to understand That il
& adopting n & andard of value f"r tn
$ assessment Of damages. the parties wer
. | To he considered as entitled 10 any 40
o vantagcs they would have derived fror
. | til" contract as far as the element a
:. profit was concerned: but in case of par
. tial performance. the plaintiff was no
| entitled 10 the contract price. nor to an
. | advantage from the contract IN the main
J. tcranCc Of the suit nut il was entitle
1 to recover the fair value Of til" service
. having regard to the contract price, an