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Frank v. Handel

107 N.Y.S. 116 Court N.Y. App. Term Decision date 1907-11-29 English

Delivered by LEVENTRITT, J.

Contents

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p. 116
FRANK et al. v. HANDEL.
(Supreme Court, Appellate Term.
November 29, 1907.)

Headnote

Contracts—Substantial Performance—Actions—Amount of Recovery.
Substantial performance of a contract does not warrant recovery of the full contract price; but the recovery is limited to an amount representing the difference between the contract price and the sum required to supply the omissions which, when remedied, would make performance complete.
[Ed. Note.—For cases in point, see Cent. Djg. vol. 11, Contracts, §§ 1493, 1493%, 1502.]
Appeal from City Court of New York, Trial Term.
Action by Hyman Frank and others, copartners, against Samuel Mandel. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.
Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ.
Eisman & Levy, for appellant.
Marx & Freyer, for respondents.

The evidence discloses a dispute as to whether the contract between the parties had been fully or only substantially performed; the defendant contending that materials of a certain value contracted for had not been furnished. The learned trial justice

p. 117
charged in effect (1) that unless the plaintiffs had proven substantial performance they could not recover, and (2) that if they had proved^ substantial performance they were entitled to the full contract price.

To the second branch of the charge the defendant properly excepted. In the event of substantial performance the plaintiffs were not entitled to recover the full contract price. Under those circumstances their recovery would be limited to such an amount as would represent the difference between the contract price and the sum required to remedy the omissions, which, when remedied, would make performance complete. Following the erroneous instructions of the court, the jury returned a verdict for the full contract price. The defendant having been thus improperly deprived of a reduction to which he might be entitled, he should have a new trial.

Judgment reversed, and new trial ordered, with costs to appellant to abide event. All concur.