129 N.E. 889 (1921)
Plaintiff was under contract with defendant to build a home using a specific type of pipe for all of the plumbing. Plaintiff did not use the pipe that was specified, but defendant did not complain about defective performance until the pipe was almost completely encased in the walls of the home. To replace the pipe, plaintiff would have had to tear down substantial parts of the completed structure. The plaintiff did not replace the pipe, and sought final payment. The trial court found in favor of defendant, and the appellate court reversed.
- The supreme court affirmed and directed verdict in favor of plaintiff because the plaintiff's omission of the specified pipe was neither fraudulent nor willful, and the plaintiff was ready to present evidence proving that the pipe used was essentially identical to the specified pipe.
- Thus, plaintiff was due payment for substantial performance with compensation for the trivial defect.
Reversal affirmed, and directed verdict entered in favor of plaintiff because plaintiff's omission of specified pipe was neither fraudulent nor willful and the pipe used was essentially identical to the specified pipe. Thus, plaintiff was due payment for substantial performance with compensation for the trivial defect.
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