Carrig v. Gilbert-Varker Corp.

Facts

On May 2, 1941, James A. Carrig (Plaintiff) hired Gilbert-Varker Corporation (Defendant) to construct thirty-five houses. A written contract included a schedule that set forth the price apportioned to each house. The contract provided that Plaintiff would take out separate mortgages on each lot and transfer the proceeds of each mortgage to Defendant. Defendant was to commence construction on each house once it received the proceeds of each mortgage. Defendant would be paid for each house as certain stages of construction were reached. Final payments were to be paid to Defendant upon completion of each house. Defendant ultimately completed twenty houses but refused to construct the remaining fifteen houses. Plaintiff sued to recover for Defendant’s breach, based upon Defendant’s refusal to build the final fifteen houses and for allegedly failing to build the twenty houses in accordance with the contract’s plans and specifications. An auditor determined that Plaintiff was not entitled to recover for the construction of the twenty houses, but was entitled to $9,935 for Defendant’s refusal to build fifteen houses. Accordingly, judgment was granted to Plaintiff for $9,935. Defendant brought a cross-action to recover amounts due for its construction of the twenty houses. The auditor found that Plaintiff owed Defendant $2,816.35 in unpaid fees for the twenty houses, but that Defendant was not entitled to recover this amount due to its refusal to build the last fifteen houses.