“The courts never say that one who makes a contract fills the measure of his duty by less than full performance. They do say, however, that 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” (id., at 241). The doctrine is required by justice, so as not “to visit venial faults with oppressive retribution” (see id., at 242), and “[t]he transgressor whose default is unintentional and trivial may hope for mercy if he will offer atonement for his wrong” (id., at 244). But “[t]he willful transgressor must accept the penalty of his transgression.” (Id.) “The interrupted work may have been better than called for in the plans. Even so, there can be no recovery if the contractor willfully and without excuse has substituted something else.”
Khiterer v. Bell
Defendant, a dentist, gave claimant two root canals and fitted her with three crowns. Claimant then treated with another doctor who informed her that her crowns were entirely porcelain instead of porcelain on gold as they allegedly should have been.
Did defendant substantially perform?
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Evidence shows that defendant's substitution was unintentional, that the all-porcelain crowns were actually better, that the service was cheaper than other dentists quoted for porcelain-on-gold crowns, that there was no harm to claimant, that replacement not necessitated, and that claimant was satisfied aesthetically.
There is no decision that suggests that a dentist's performance can be substantially defective just because it involved adding a material to claimant's body.
Defendant's breach was not substantial. Judgment to claimant, awarding only nominal damages.