O W Grun v. Cope Case Brief

Summary of O W Grun v. Cope
Texas Ct. Civil App [1975]

Relevant Facts: Pl, Mrs. Cope hired Df, Grun to install a new roof on her home. The K describes the color of the shingles to be used as “russet glow," Df defined as “brown varied color." Df acknowledged that it was his obligation to install a roof uniform in color. Df originally installed 24 squares. Pl noticed afterward that it had streaks of yellow, due to a difference in color of some of the shingles. Df agreed to remove and replace the non-conforming shingles. The replacement shingles do not match the remainder. The disparity in color has not disappeared in nine or ten months and the roof is not uniform in color. The installation of a completely new roof is needed to produce the uniformity. The roof is a substantial roof and will give Pl protection from the elements.

Legal Issue(s): Whether the Df, Grun, substantially performed the contract when his tendered performance was seriously deficient, and whether Df can recover under Quantum Meruit?

Court’s Holding: No, and No.

Procedure: Jury trial for the Pl, Df appealed. Ct. of App. Affirmed.

Law or Rule(s): A promisor who has substantially performed is entitled to recover, although he has failed in some particular to comply with his agreement.

Court Rationale: One of the most obvious factors in determining whether the performance amounts to substantial performance is the extent of the non performance. The deficiency will not be tolerated if it is so pervasive as to frustrate the purpose of the K in any real or substantial sense. The doctrine does not bestow upon the contractor license to install whatever is in his judgment “just as good." In the matter of homes and their decoration mere taste or preference, almost approaching whimsy, may be controlling by the homeowner, so that variations which might under other circumstances, be considered trifling, may be consistent w/ that “substantial performance," on which liability to pay must be predicated. The Pl can secure a roof of uniform color only by installing a new roof. A contractor who tenders a performance so deficient that it can be remedied only by completely redoing the work has not substantially performed his contractual obligations.

There is evidence that the shingles were not properly installed, b/c if so the color would have blended and not streaked. The Pl did not receive a benefit but she will have to install a completely new roof, b/c of Df’s deficiency she will have to pay for a new roof. Pl did not accept the claimed benefit, she complained immediately and thereafter.

Plaintiff’s Argument: The Df did not comply with the provision of the contract, and a new roof needs to be installed to fix his deficiencies.

Defendant’s Argument: The Pl received a benefit of a roof to keep out the elements, the color variation is a slight deviation.



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