Wilkinson v. Becker
Wilkinson v. Becker
Opinion of the Court
We have examined the several assignments of error in this case but see no reason for disturbing the judgment. The question of substantial performance of the contract was submitted to the jury and they have found that there was no substantial performance. If this is right, as wo must assume it to be, the plaintiff had no right to recover. It would seem, upon the whole ease as it is presented to us, that a very strict rule was applied by the jury; but on the other hand the record shows that the case was reviewed by the court below on a motion for a new trial, and the motion refused. The inference is plain that both the jury and the judge before whom the case was tried were satisfied that there ought to be no recovery. However this may be the case was properly submitted and the judgment is affirmed.
Reference
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- 2 cases
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- Syllabus
- Entire contract—Parol evidence to vary writing. In an action on an entire contract for plumbing work, where the written agreement specified item for item the work to be done, and the evidence is conflicting as to whether defendant agreed that some of the items should be omitted, it is proper to charge that the jury have no right to find that the contract was changed unless the evidence is clear, convincing and without doubt. Discharge of contract—Material variation. In such an action it is proper to charge that if the plaintiff failed to perform any material portion of his contract, he had no right to recover.