A painter contracts to paint a house while the homeowner is away and delegates the job to a second painter, taking an advance and agreeing to split profits. The first painter then works on another job and leaves the home unpainted. Does the homeowner have a claim against the first painter?

• A. Yes, because the first painter was not released from liability.
• B. No, because the first painter delegated performance properly.
• C. Yes, because the second painter performed.
• D. No, because the homeowner should have arranged for another contractor.

Answer: (A)

Delegation of performance does not automatically release the original promisor from liability. When a party contracts to perform and then delegates that performance to another person, the contract remains with the original promisor unless the other party explicitly agrees to a novation or releases the original promisor. Here, the homeowner contracted with the first painter to paint the house, the first painter delegated the job to a second painter, and no novation or release occurred. Therefore, the first painter remains liable for breach of contract if the job is left unfinished.

Because the first painter did not complete the painting, the homeowner has a claim against him for breach of contract, even though the second painter performed or the first painter took an advance and split profits. The homeowner is not required to accept the substitute to excuse the first painter, and the option that the homeowner should have arranged another contractor does not discharge the first painter’s liability.