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Welch v. Livingston

67 N.Y.S. 149 Court N.Y. App. Term Decision date 1900-11-27 English

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Majority

p. 149
(33 Misc. Rep. 116.)
WELCH v. LIVINGSTON et al.
(Supreme Court, Appellate Term.
November 27, 1900.)

Headnote

Master and Servant—Contract—Breach by Master—Action—Pleading— Quantum Meruit.
In an action for services rendered under a contract, the defendant having prevented the completion thereof, plaintiff is not confined to an action for damages for the breach, but may sue on a quantum meruit for services performed.
Appeal from municipal court, borough of Manhattan, Second district.
Action by Thomas H. Welch against Louis D. Livingston and others. From a judgment in favor of plaintiff, defendants appeal.
Modified.
Argued before BEEKMAN, P. J., and GIEGERIOH and O’GORMAN, JJ.
Shafer & Levin, for appellants.
Stake & Eckerson, for respondent.

This action was brought to recover for work, labor, and services rendered by plaintiff to the defendant, and on conflicting evidence the jury found for the plaintiff. Although it appears a specific contract had been entered into between the parties, the plaintiff was not confined to an action for damages for the breach thereof. Where a contract has been partially performed, and the defendant prevents the completion thereof, the aggrieved party may sue on a quantum meruit for the work done. Farron v. Sherwood, 17 N. Y. 227 . As the item allowed for the expenses in returning the machine to Baltimore have not been incurred, and are not reasonably certain to be incurred, they should have been withdrawn from the consideration of the jury. The judgment will therefore be reduced to $171.79, and, as modified, affirmed, without costs to either party.

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