Civil Model Jury Charge 4.30A BUILDING
CONTRACTS — SUBSTANTIAL PERFORMANCE OF BUILDER
A builder who has fully performed a
contract in all its details is entitled to recover the entire contract
price. Where a builder has substantially
performed the contract, although there are some defects or omissions in his/her
performance, he/she is entitled to recover the contract price minus a fair
allowance for the defects or omissions in performance. Substantial performance has occurred when:
1.
There has been such an approximation to complete performance that the owner
obtains substantially what is called for by the contract; and
2.
The defects in performance are not so serious as to deprive the owner of
the intended use of the property.
The builder has the burden of proof as
to substantial performance. The owner
has the burden of proof as to the amount of fair allowance for defective work
or omissions for which the owner is entitled to credit.
Cases
and Commentary:
The builder in a construction contract
is entitled to recover upon proof of substantial performance. R.
Krevoline & Co., Inc. v. Brown, 20 N.J.
Super. 85 (App. Div. 1952); Winfield, etc., Corp. v. Middlesex, 39 N.J. Super.
92 (App. Div. 1956); Damato v. Leone
Construction Co., 41 N.J. Super. 366 (App. Div. 1956); Jardine Estates v. Donna Brook Corp., 42
N.J. Super. 332 (App. Div. 1956); Power-Matics,
Inc. v. Ligotti, 79 N.J. Super. 294 (App. Div. 1963).
However, the burden
of proof as to substantial performance and that the defects were not so serious
as to deprive the owner of the intended use of the property is upon the
builder. Power-Matics, supra, at
p. 303. The burden of proving the amount
of allowance for defective work is upon the owner. Winfield,
supra, at p. 97; Globe Home Improvement Co. v. Michnisky, 120 N.J.L. 233 (Sup. Ct. 1938).
