Lydecker v. Valentine — 24 N.Y.S. 567

Majority

p. 567

(71 Hun, 194.)

LYDECKER v. VALENTINE.

(Supreme Court, General Term, Second Department.

July 28, 1893.)

Headnote

Breach of Contract—Measure of Damages.

On a breach of contract to lodge and board with plaintiff for a definite time, plaintiff cannot recover the contract price for board and room, less the amount received from other persons for the use of the room, but is entitled only to the profits which she would have made had defendant performed the contract.

Appeal from circuit court, Rockland county.

Action by Elizabeth A. Lydecker against Henry M. Valentine for breach of a contract. From a judgment entered on a verdict for plaintiff, for $201, and from an order denying a motion fór a new trial, defendant appeals.

Reversed.

Argued before BARNARD, P. J., and DYEZMAN and PRATT, JJ.

Snider & Hopper, for appellant.

Arthur S. Tompkins, for respondent.

This action was for damages for breach of a contract for rooms and board with the plaintiff. The complaint alleged that the defendant agreed to pay plaintiff, for a room and board, $14 per week, from May 1 to November 1, 1890; that he did so pay until June 1, 1890, when he left the premises. The court charged the jury that the plaintiff was entitled to recover the amount of the contract price for board and room, less the amount of $107, which the plaintiff had from other parties for the same room. This, we think, was error. The damages could not be the whole contract price, but only what the plaintiff lost by defendant not being there, i. e. the profits she would have made if defendant had carried out the contract. The defendant’s counsel asked the court to charge that proposition, but the court refused, to which exception was taken. The case was bare of evidence on which damages could be computed. ' The plaintiff ought to have proved how much profit she could have made if defendant had kept his contract, as basis for the jury to estimate the damages. See Wetmore v. Jaffray, 9 Hun, 140 ; De Lavalette v. Wendt, 11 Hun, 432 . Judgment reversed, and new trial granted; costs to abide the event. All concur.