American Contract Law for a Global Age, 2017a

In a contemporaneous U.S. Supreme Court case, Filley v. Pope, 115 U.S. 213 (1885),
the seller breached a contract for the sale of 500 tons of Scotch pig iron because the
contract required shipment from Glasgow, but the ship actually sailed from Leith (a
port the same distance from the factory as Glasgow). The shipment was a breach even
though there was no evidence of any prejudice to the buyer. The substantial
performance doctrine seems much more reasonable in the face of such a result.
This problem of strict compliance can be especially troublesome where one
party is using a relatively minor failure to escape liability on some other ground,
when a reasonable person ordinarily would have no objection. On the other hand, a
looser standard can also be troublesome in that it may encourage shoddy
performance. Contract law, as you will see in the materials that follow, is constantly
navigating the tension between perfect-tender and substantial-performance
standards.
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Cases and Materials
SMITH v. BRADY
Court of Appeals of New York
17 N.Y. 173 (1858)
[Defendant had hired plaintiff contractor to build some cottages for $4,900. The
contract required a certificate from the architect that work had been done in
conformance with the plans before final payment. After construction, the architect
refused to give a certificate based on what the plaintiff claimed were “unreasonable
and frivolous objections.” Defendant refused to pay make the final payment of $2,295,
and plaintiff sued. The trial court determined that the work was defective, but that
it caused only about $212 in damage to defendant, and that plaintiff had actually
spent an extra $295 on the project already. So the court awarded plaintiff $1,934.
Defendant appealed.]
COMSTOCK, J. 2
It was one of the specifications of the contract that the “nailing joists” in the
frames of the cottages were to be twelve inches apart, measuring from center to
center. The defendant’s evidence tended to show that these joists were in fact placed
sixteen inches apart; that, in consequence of this departure from the specification,
2 [Judge Comstock’s opinion is actually the second (or concurring) opinion printed under this
case in the New York Reports. The opinion is, however, joined by all of the other judges on the court,
making it the arguably controlling opinion. – Eds.]
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UNIT 21: STANDARDS OF CONTRACT PERFORMANCE 429