Wednesday, December 25, 2013

Carter v. Sherburne Corp. case brief

Carter v. Sherburne Corp. case brief summary
315 A.2d 870 (1974)

Defendant developer sought review of a judgment of the Rutland County Court (Vermont), which awarded plaintiff contractor various sums due on work performed pursuant to several construction contracts and on a quantum meruit basis for certain additional work done, finding that he was in substantial compliance under his contracts. The developer had asserted a counterclaim alleging the contractor's failure to fulfill contractual obligations.

The contractor initiated an action against the developer for payment for work done and materials furnished by him under several construction contracts. The trial court found that the contractor performed other work for the developer without compensation under a promise for additional work, which the developer did not fulfill. On appeal, the developer argued that the trial court erred in its ruling that the contractor was in substantial compliance under his contracts, even though he failed to perform within the specified time. In addition, defendant claimed that parole evidence was improperly admitted when determining the contractor's rights based on the theory of quantum meruit.


  • The court affirmed the judgment. 
  • None of the contracts included express language making time of the essence, and nothing precluded the operation of the general rule that time was not of the essence in a building or construction contract in the absence of an express provision making it such. 
  • Furthermore, most of the delays were due to the developer's action. 
  • The court also held that the parol evidence rule did not preclude, as between original parties, proof of failure of consideration.
The court affirmed the judgment for the contractor regarding his claims against the developer for work done and materials furnished.

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