Fay v. Moore

Moore (defendant) hired Fay (plaintiff) to construct a building under a contract requiring payment only once the project architect issued a certificate of completion, and requiring written architect approval for any changes to specifications. The contract called for wood corner bead of unspecified style, but when the building was nearly finished, the architect (at Moore's behest) demanded a style that was effectively impossible to find; separately, the architect had directed Fay to install chestnut window sashes instead of the specified white pine to better match the interior. The architect refused to issue a certificate of completion, Moore hired a replacement contractor to finish the work, and Fay sued for payment. After two earlier trials went against him, a third jury found that Fay had not willfully departed from the contract, that the parties had waived the writing requirement for the sash change through the architect's own instruction, and that Fay had substantially performed; the trial court entered judgment for Fay, and Moore appealed.