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Goldstein v. Godfrey Co.

113 N.Y.S. 123 Court N.Y. App. Term Decision date 1908-11-30 English

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p. 123
(61 Misc. Rep. 64.)
GOLDSTEIN et al. v. GODFREY CO.
(Supreme Court, Appellate Term.
November 30, 1908.)

Headnote

1. Damages (§ 124[1] )—Breach oe Contract—Measure of Damages.
Where a plaintiff sues for breach of the contract, and not for the work actually done under it, the measure of damages is ordinarily the difference between the price agreed to be paid for the work, and what it would cost to complete it.
[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 326-338; Dec. Dig. § 124.*]
2. Damages (§ 124*) — Breach of Contract — Prevention of Performance-Measure of Damages.
In an action for breach of contract to make and install fixtures because the owner stopped the work, the measure of the contractor’s damages is the actual loss sustained to him by taking into consideration the loss in value of the materials used at the time the work was stopped and the profits which he would have made had he been allowed to complete the work.
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Isaac Goldstein and another against the Godfrey Company. From a judgment of the Municipal Court in favor o'f plaintiffs, defendant appeals.
Reversed, and new trial ordered.
Argued before GIEDERSLEEVE, P. J., and MacLEAN and SEA-BURY, JJ.
p. 124
Walter E. Godfrey (Henry Best, of counsel), for appellant.
Herman Kahn, for respondents.

On September 6, 1907, the plaintiffs contracted with the defendant to make and install in a store, intended to. be used as a family liquor store at Ninth avenue in this city, certain fixtures, at an agreed price of $218, and, if the work was completed by September 19th, the price was to be $225. Some days after the plaintiffs began work, they were ordered by the defendant to stop; the reason assigned by the plaintiffs being that the defendant was having trouble in obtaining a liquor license, and the defendant claiming that the cause of the stoppage of work by him was that the shelving was being put in with nails and not in grooves. Upon this question the court below found for the plaintiffs and gave a judgment for the plaintiffs in the sum of $200. The sum of $25 had been paid by the defendant to apply upon the contract price.

It will be seen that the court below gave judgment for the full contract price. This was error. The contract, concededly, had not been fully completed, when the defendant ordered the stoppage of the work. In a case where the plaintiff sues, not for the work actually done, but for breach of the contract, the measure of damages, ordinarily, is the difference between the price agreed to be paid for the work, and what it would cost to complete it. In the case of Miller v. Hahn, 23 App. Div. 48 , 48 N. Y. Supp. 346 , the court held that plaintiff’s damages were loss of profits and the value of the material used, provided it was shown that such had become useless for any other' purpose, or if the material in its altered state has value the difference between its value before and after it had been cut up for use. In the case at bar, the proper measure of damages would be the actual loss sustained by the plaintiffs, taking into consideration the loss in value of the materials used at the time the work was stopped and the profits which plaintiffs would have reaped had they been allowed to complete the job. The judgment must therefore be reversed.

Judgment reversed, and a new trial ordered, with costs to the apr pellant to abide the event.

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