
    SCHAFF BROTHERS, INC. v. AMERICAN FIDELITY FIRE INSURANCE COMPANY.
    No. 10645.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 4, 1979.
    Roger I. Dallam, Greenberg & Dallam, Gretna, for plaintiff.
    H. Bruce Shreves, Lloyd N. Shields, Brian, Simon, Peragine, Smith & Redfearn, New Orleans, for defendant.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   REDMANN, Judge.

In this suit against a surety for the $7,000 balance of a $55,000 subcontract price, on plaintiff’s moving for summary judgment a defense affidavit by the general contractor’s supervisor asserted four items of nonperformance of the contract: nondelivery of the manufacturer’s specifications and instructions for the heating and air conditioning equipment, nondelivery of equipment warranties, constant leaking of a water fountain, and nonperformance of checking duct thermostat operation. The trial court nevertheless granted summary judgment for the entire balance plus statutory attorney’s fees. We reverse on the basis that the affidavit showed there was a dispute of material fact.

The law is clear that a building subcontractor is entitled to the entire contract price only when it has rendered the entire contracted performance, and that if it has rendered only “substantial performance” it is only entitled to contract price less cost of completion.

If the four items of nonperformance be established then plaintiff is not entitled to the full balance on the price. It may well be that the case must be considered one of substantial performance, in which it ultimately falls to defendant to prove the amount of the cost of remedying the minor nonperformance. But to defeat a motion for summary judgment for the price of a fully performed contract, defendant need show only that it disputes that the contract was fully performed, and need not further show the cost of remedying nonperformance — a cost which plaintiff might itself dispute. That would amount to trying the dispute by affidavit, and that the law does not authorize.

The general contractor was entitled to every bit of performance the contract requires of plaintiff, just as plaintiff is entitled to every cent of the price as an equivalent. There is a dispute as to whether some bits of the contracted performance were performed. One therefore cannot say as a matter of law that plaintiff is entitled to the full price; the defense affidavit indicates that entitlement is only to price less cost of completion.

Reversed.  