SAM HERMAN, APPELLANT,
v.
DADE LINEN & FURNITURE CO., A FLORIDA CORPORATION, APPELLEE
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In this breach of contract action, the Florida District Court of Appeal affirmed a jury verdict for the seller of air conditioning units against the buyer. The court held that the contract term "Completion" was satisfied when the units were installed and made operational through remedial measures, despite initial installation defects.
The court held that the contract was substantially completed and the seller was entitled to the purchase price. The term "Completion" in the contract should be construed based on how the parties themselves understood it through their actions, and the defendant was estopped from requiring remedial measures and then claiming non-completion. The question of whether 230 volt motors could adequately perform a 208 volt specification was properly submitted to the jury.
“A party to a contract should not be permitted to require remedial measures and then urge that substantial performance will not satisfy the contract.”
Establishes the key doctrine preventing the defendant from seeking remedial work and then claiming non-completion.
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Join FLexlaw to unlock all legal intelligenceHerman sold Dade Linen 75 air conditioning units under a written contract requiring payment of $2,205.10 upon delivery and $10,000 upon completion. Th…
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The defendant seeks review of a final judgment based upon a jury verdict for the plaintiff in an action for the purchase price of personal property. We affirm.
The plaintiff sold to the defendant and agreed to install 75 air conditioning units. The written contract of sale called for payment of the purchase price as follows: “Delivery of Shells $2,205.10, Completion $10,000.” Prior to this suit, the defendant had paid all but $5,000. The units were installed; 35 did not operate properly. The plaintiff installed transformers to step up the voltage and the units operated thereafter.
The defendant maintains that the contract was not “complete” as to entitle plaintiff to the balance of the purchase *879price because: (1) “Completion” means •delivery, installation and initial operation, and since the units did not operate when installed subsequent operation did not “complete” the contract; (2) The evidence conclusively shows that the electric motors on the 35 machines were not at the voltage rating specified in the agreement, and, therefore, the contract was not “complete” even if the machines did operate after transformers were added; (3) The fans on the machines never did function at proper speed. Appellant further argues that since the contract was not complete, appellee was not entitled to payment on the basis of the contract but must recover, if at all, on the quantum meruit theory.
We have examined the record in the light of each contention. First, we think the court properly construed the word “completion” as the parties to the contract had construed it by their actions. Lalow v. Codomo, Fla.1958, 101 So.2d 390, 393. The defendant early maintained that it was the plaintiff’s duty to provide him with working machines and did not prior to trial take the position that remedial measures would not complete the contract. A party to a contract should not be permitted to require remedial measures and then urge that substantial performance will not satisfy the contract. See Simpson, Contracts § 132 at 474 (1954).
Second, the question as to whether a contract calling for 208 volt air conditioners could be performed by installing machines with 230 volt fan motors was properly left to the jury. Each party submitted expert testimony. There was evidence that this voltage variance would not prevent the machines from operating reasonably, and with the installation of transformers they would operate properly. In this state of the record we will not substitute our judgment for that of the jury. Merchants’ Transp. Co. v. Daniel, 109 Fla. 496, 149 So. 401. Stegemann v. Hite, Fla.App.1957, 96 So.2d 595.
In addition, the plaintiff has raised two other points pertaining to (1) the admissibility of certain evidence which was tendered by defendant and excluded upon objection of plaintiff, and (2) the propriety of a directed verdict for plaintiff upon defendant’s counterclaim. Upon these points it is enough to point out that defendant had not demonstrated reversible error.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Merchs. Transp. Co. v. Daniel, 109 Fla. 496 (Fla. 1933)
- Lalow v. Codomo, 101 So. 2d 390 (Fla. 1958)
- Otto C. Stegemann v. Hite, 96 So. 2d 595 (Fla. 3d DCA 1957)