Majority
p. 504(52 Misc. Rep. 656) RAISLER HEATING CO v. DOWD et al. (Supreme Court, Appellate Term. February 4, 1907.) Argued before GILDERSLEEVE, BLANCHARD, and DAYTON, JJ.
Headnote
Contracts—Compensation—Amount of Recovery.Where there was an agreement to pay the “cost” of doing a job, and it appears from the situation and negotiations of the parties that actual cost was the meaning intended by the word “cost,” the person doing the work is limited to the actual cost, and is not entitled to any profit.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, § 1045.]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by the Raisler” Heating Company against James F. Dowd and another. From a judgment for plaintiff, defendants appeal. Judgment reversed, and a new trial ordered.
Blandy, Mooner & Shipman (Laurence A. Sullivan, of counsel), for appellants.
Bernard H. Sandler, for respondent.
This is an action brought to recover for work, labor, and services rendered in pursuance of an agreement to pay the “cost” of doing the job. The situation of the parties tends to show that actual cost was the meaning intended by the word “cost” used in the agreement; and the negotiations of the parties, which were properly admitted in evidence to explain the written agreement, confirm this view. Accordingly, judgment could not properly be awarded for an amount which included profit.
Judgment must be reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.