Jacob & Youngs v. Kent:
Court of Appeals of New York
230 N.Y. 239 (1921)
Issue: Was the use of a different type of piping a substantial deviation, resulting in breach?
Application: The evidence suggests that the omission of the prescribed brand of pipe was neither fraudulent nor willful.
-It was the result of the oversight and inattention of the plaintiffs subcontractor
-Reading pipe is distinguished from Cohoes pipe and other brands only by the name of the manufacturer stamped upon it at intervals of between 6-7 feet.
-Even defendant's architect failed to notice the defect when he first inspected the pipe
-An omission, both trivial and innocent, will sometimes be atoned for by allowance of the resulting damage, and will not always be the breach of a condition to be followed by a forfeiture
-This does not mean that there is a general license to install whatever, in the builders judgment, may be regarded as "just as good"
-Must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence.
-In the circumstances of this case, the measure of the allowance is not the cost of replacement, which would be great, but the difference in value, which would either be nominal or nothing.
-The rule that gives a remedy in cases of substantial performance with compensation for defects of trivial or inappreciable importance, has been developed by the courts as an instrument of justice.
Conclusion: Yes, but since it was a small deviation, and the cost to fix it would be great, can only recover the difference between the two pipes
-Plaintiff build a country residence for the defendant at a cost of $77,000, and is suing for the balance of $3,483, remaining unpaid.
-June 1914: The work of construction ceased, defendant begins to occupy the building.
-March 1915: Defendant complains of the plumbing, discovering that some of the pipe, instead of made in Reading, was the product over other factories.
-The contract provided that the piping was to be from the Reading manufacturer
-Defendant directed the plaintiff to do the work anew.
-Obedience with this order the demolition at great expense of substantial parts of the structure
-Plaintiff left the work as it was, and asked for a certificate that the final payment was due.
-Trial Court: Excluded evidence that the brands were the same quality. Directed verdict for the defendant
-Appellate Division: Reversed
-The failure to provide the correct pipes was either intentional or due to gross negligence.
-The pipe was only inspected once, and not any time afterwards
-The plaintiff agreed that all of the pipe was to be manufactured by Reading
-Only about 2/5th of the pipe used was by Reading
-If it was a small mistake, he may have been able to recover the contract price. Here only 1,000 out of 2,500 feet of pipe laid were of the right manufacturer.
-Defendant doesn't need a reason for requesting the pipe and had a right to receive the correct pipe