Contracts II, Pages 895–900

Jacob & Youngs v. Kent

Court of Appeals of New York, 1921


Plaintiff built a residence for defendant for $77,000, $3,483.46 of which defendant did not pay plaintiff. Defendant moved in after construction and lived there without complaint for nine months. After nine months he learned that some of the pipe was not made in Reading like the contract specified. The makes of pipe were practically identical and only distinguishable by the name stamped on them every six or seven feet. Defendant's architect directed plaintiff to redo the pipe work, despite it already being already sealed in the walls. Plaintiff refused and sued for the remainder of his payment.

Procedural History:

The trial court excluded the evidence about the pipes' identicalness and directed a verdict for the defendant. The appellate division reversed and granted a new trial.


Did plaintiff's minor breach of the contract remove defendant's duty to pay him the remaining balance?


It would be harsh, oppressive, and unjust to always treat contracts entirely dependent on even their minutiae.


LexisNexis IconWestLaw LogoPage 897

We must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence. Then only can we tell whether literal fulfilment is to be implied by law as a condition. . . . This is merely to say that the law will be slow to impute the purpose, in the silence of the parties, where the significance of the default is grievously out of proportion to the oppression of the forfeiture.


Affirmed; judgment absolute for plaintiff, with all costs.

Dissenting Opinion:

McLaughlin: Plaintiff did not perform its contract. Plaintiff either violated the contract intentionally or due to gross negligence. Under half of the pipe it installed actually met the terms of the contract with no explanation why or estimate on the cost to fix it. Defendant contracted for this specific manufacturer and it does not matter why or whether they are otherwise identical. Even if plaintiff put something equal or better in, he violated the condition to getting paid for that work and should not recover.

See Also:

Jacob & Youngs v. Kent (Damages)