American Contract Law for a Global Age, 2017a

was for requiring this kind of pipe is of no importance. He wanted that and was
entitled to it. It may have been a mere whim on his part, but even so, he had a right
to this kind of pipe, regardless of whether some other kind, according to the opinion
of the contractor or experts, would have been “just as good, better, or done just as
well.” He agreed to pay only upon condition that the pipe installed were made by that
company and he ought not to be compelled to pay unless that condition be performed.
The rule, therefore, of substantial performance, with damages for unsubstantial
omissions, has no application.
Hiscock, Ch. J., Hogan and Crane, JJ., concur with Cardozo, J.; Pound and
Andrews, JJ., concur with McLaughlin, J.
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Review Question 2. Judge McLaughlin’s dissent says that “[i]f the plaintiff
[contractor] had intended to, and had complied with the terms of the contract except
as to minor omissions, due to inadvertence, then he might be allowed to recover the
contract price, less the amount necessary to fully compensate the defendant for
damages caused by such omissions.” Wouldn’t Judge Cardozo agree with that
statement as an accurate articulation of the substantial performance doctrine? If both
judges are applying the same basic rule, then how can you explain their reaching
such different results?
Review Question 3. Suppose that Mr. Kent was, in fact, the president of the
Reading Pipe Company. Should that change the outcome of the case? Why or why
not?
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O. W. GRUN ROOFING & CONSTRUCTION CO. v. COPE
Court of Civil Appeals of Texas, Fourth District—San Antonio
529 S.W.2d 258 (Tex. Civ. App. 1975)
CADENA, J.
Plaintiff, Mrs. Fred M. Cope, sued defendant, O.W. Grun Roofing &
Construction Co., to set aside a mechanic’s lien 4 filed by defendant and for damages
4 [When a contractor does work on a piece of real property, statutes in most states allow it to
recover money owed from whoever owns the property, not merely from the person who hired the
contractor. Thus, if a subcontractor is not paid for work, the prime contractor that hired it is liable,
but so can be the owner who hired the prime contractor. If the property is sold, the new owner will also
be liable based on a “mechanic’s lien” having been filed in the real property records. The terminology—
still very much in use by lawyers today—came about because in the 19th century all skilled workers
were referred to as “mechanics.” The lien is not itself a lawsuit; it simply attaches to the property until
such time as the contractor sues to enforce it or, as here, the owner sues to have the encumbrance on
the property removed. – Eds.]
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436 CHAPTER VII: PERFORMANCE AND BREACH