Thomas v. Jackson

151 S.W. 521, 105 Ark. 353, 1912 Ark. LEXIS 457

• Court: Supreme Court of Arkansas
• Decided: November 18, 1912
• Status: Published

Opinion

Kirby, J.,

(after stating the facts). It is contended that the cause should be reversed for the failure to give said requested instructions, but we have examined same carefully, and the only two which correctly state the law were sufficiently covered by the instructions given by the court, none of which were excepted to, and no prejudice resulted from the refusal to give them.

Appellant objected, it is true, to the giving of each of said instructions by the court, but he failed to preserve his exceptions by carrying them into his motion for a new trial as a ground therefor, and thereby waived the right to complain of error in the court’s ruling thereon. St. Louis & S. F. Rd. Co. v. Fayetteville, 75 Ark. 534; Burris v. State, 73 Ark. 455; McCarroll v. Stafford, 24 Ark. 224; Ray v. Light, 34 Ark. 421.

He likewise waived the right to complain of error in the. admission and exclusion of evidence. Fourche River Lbr. Co. v. Bryant Lbr. Co., 97 Ark. 632; Choctaw & M. Rd. Co. v. Goset, 70 Ark. 427; St. Louis, I. M. & S. Ry. Co. v. Deshong, 63 Ark. 443; Ince v. State, 77 Ark. 418; Allen v. State, 70 Ark. 337.

It is undisputed that appellant moved into the building and occupied it with his family after it was constructed, and that he still continues to do so.

When work has been done substantially in compliance with the terms of the contract, or there has been an acceptance of the work by the contractee, the contractor may,' notwithstanding defects' therein, recover the contract price, less the cost of correcting such defects. A substantial performance is all that is required to authorize a recovery of the contract price, less the additional cost of a literal compliance with the contract. Mitchell v. Caplinger, 97 Ark. 281; Fitzgerald v. Laporte, 64 Ark. 84; Ark-Mo Zinc Co. v. Patterson, 79 Ark. 506; Harris v. Graham, 86 Ark. 570.

Appellee was entitled to recover on the contract upon a substantial performance of it, or an acceptance of the work by the contractee, notwithstanding defects therein, the contract price, less the cost of correcting such defects. The jury only allowed $29.21 credit to appellant upon his claim of defective- and unfinished work, but the issues were fairly submitted to them by the instructions given, and they have found them in favor of the appellee upon conflicting testimony, and their-verdict will not be disturbed.

Finding no prejudicial error in the record, the judgment is affirmed.