Fay v. Moore

Moore (defendant) hired Fay (plaintiff), a contractor, to construct a building. Their contract provided that Fay would be paid only after the project’s architect issued a certificate of completion. The contract also stated that no alterations would be made to the contract’s specifications without written instructions from the architect. When the building was practically finished, Fay requested a certificate of completion from the architect. The architect refused to issue a certificate of completion on the grounds that the construction had not been performed in conformance with the contract’s requirements. First, the contract called for wood corner bead but did not specify a style. A letter from the architect to Fay indicated that Moore was unhappy with the style of corner bead that Fay had used. Instead, Moore wanted a style that was impractical and impossible to find. Second, the contract called for white pine window sashes. Fay installed chestnut window sashes, at the architect’s request, in order to better match the other interior finishes. Fay claimed he had completed all required work on the building, but the architect continued to refuse to issue a certificate of completion. Moore hired a new contractor to complete the work that he believed Fay had failed to do. Fay sued Moore for payment under the contract. Moore argued that Fay had failed to fully perform the terms of their contract because Fay did not obtain a certificate of completion from the architect and did not meet certain specifications for style and materials. Fay’s suit was tried three times. The first two trials resulted in a judgment in favor of Moore notwithstanding the verdict. At the third trial, the jury found that Fay had not willfully or intentionally departed from the contract’s specifications. Additionally, the jury found that the parties waived the requirement that alterations to the contract be made in writing when the architect instructed Fay to use chestnut wood for the window sashes. Finally, the jury found that Fay had substantially performed the terms of the contract. The trial court entered judgment in favor of Fay. Moore appealed.