Reports of Cases Argued and Determined in the Supreme Court of the State of Montana from December Term 1868, to Volume 55

Reports of Cases Argued and Determined in the Supreme Court of the State of Montana from December Term 1868, to Volume 55

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1919 edition. Excerpt: ...substantial performance only, the same burden of proof is imposed upon him;but it is equally true 4 that if he pleads complete performance and tenders evidence to support the plea, he will not be dismissed from court merely because the evidence in its entirety warrants a finding of substantial performance only, if there is evidence offered by either party from which the cost of supplying the omissions can be determined. (Rowe v. Gerry, 112 App. Div. 358, 98 N. Y. Supp. 380; affirmed, 188 N. Y. 625, 81 N. E. 1175.) At the request of the defendant the court gave instruction No. 5, which, after referring to the character of the action, proceeds: "The burden of proof is upon the plaintifi to show that he performed the contract for the construction of said building and the doing of the extra work in a good and workmanlike manner. The law requires substantial performance of the contract. By the term 'substantial performance' is meant that the work as done is free from all defects of a permanent character or such as cannot be remedied by slight alterations or Without reconstruction. If you believe from the evidence that the building has not been constructed in such a substantial manner but that it contains defects which cannot be remedied without reconstruction, then the plaintiff is not entitled to recover in this action, and you will find the issues against him." Counsel for appellant err in assuming that plaintilf concedes that he failed to perform the contract in substantial particulars. As we read the record, he does not ground his right to recover even upon substantial performance, but insists that he fully performed the original contract as modified by the subsequent 5 agreements. The doctrine of more

Product details

  • Paperback | 262 pages
  • 189 x 246 x 14mm | 472g
  • English
  • Illustrations, black and white
  • 1236846052
  • 9781236846051