Moore v. Taylor — 5 N.Y. St. Rep. 202

Majority

p. 202

Thomas Moore, Resp’t, v. Henry A. Taylor and Joseph Stone, Applt’s. Same Resp’t, v. Same Applt’s.

(No. 1.)

(No. 2.)

(Supreme Court, General Term, Fifth Department,

Filed October, 1886.)

Headnote

1. Contbact — Breach — Abandonment—Damages—Prospective Profits.

Where parties entered into a contract by which the contractor agreed to do certain work in connection with the construction of a railroad at certain agreed prices, and part of the agreement was that payments were to be made by the railroad company on account of the work as often as every two weeks, and on or before August 1st, for the work done up to July 25th. And the contractor entered upon the performance of tbe contract, and continued the w’ork until August 1st, when he ceased, and abandoned the work uncompleted, because of the railroad’s refusal to pay the installment then due or any part thereof, except on condition that the contractor agreed to pay out the money so paid him under the direction of the company, which condition he would hot agree to. Held, that the contractor was justified by the breach on the part of the railroad company in abandoning the further performance of the contract, and entitled to recover for the work done ; but the breach not being such as to deny to him the right and power to go forward, he could not recover as damages the value of his contract (i. e. prospective profits).

2. Same — Right to becoveb instadlment and continue work.

Such a default is not in legal effect a denial of the right to proceed in the performance of the contract to perform services to completion by the other party, or as creating a liability to recovery of prospective profits by way of damages as the consequence. The failure to pay gave an immediate remedy by action to recover the stipulated amount, and is not inconsistent with the right to go forward with the work.

3. Same — What must appear to entitle to prospective profits.

It must appear that one party is prevented by the act of the other from realizing the benefit which the contract furnishes, before the former is entitled to recover the value (prospective profits) of the stipulation or covenant he has taken of him who defeats such rights. The pecuniary condition and responsibility of the parties have no bearing on the question.

4. Same — Abatement — When money paid can be allowed — Circuity of action.

The contractor having sublet a portion of the work to M. & S., a large number of M, & S.’s workmen and others being unpaid (by reason of the railroad company’s default), gave notice to the railroad company of their claim for labor done, and filed liens against the company for materials furnished and used in the work of construction under the contract. The company, with the assent of the sub contractors, M. & S., paid these claims, which were against M. & S., and took assignments of them. The purpose of the company in taking the assignments was only as a means of making more effectual their purpose to apply the money so advanced upon the amount which they by their contract had agreed to pay the contractor, and not with any view to create a liability of any other party to them for the amount so paid. Held, that the amount of these payments so made by the company properly, should be, and can be, allowed to the company by way of abatement of the contractor’s recovery. And that the parties should not be put to a circuity of action, which would result in no advantage to any party, and would in practical effect finally accomplish the application of the amount in the same way.

p. 203

Appeal from judgments entered upon reports of referee.

On June 7th, 1882, the parties entered into an agreement by which the plaintiff agreed to do the work of graduation, bridging, masonry, tracklaying, track surfacing, and distribution of ties on the Rochester and Ontario Belt Railway, commencing at station (0.) on the bluff of the Genesee River, thence on pleasure line to about station 67, at junction with the permanent line at station 380, thence along it to about station 616 at the shore of Lake Ontario, and in addition three sidings, aggregating about 2600 feet of track, switches and frogs, and a branch of about 4000 feet. The surfacing and track laying in all about seven miles. The clearing and grubbing estimated about five acres. Earth assumed to amount to 81000 yards, rock 1000 yards, bridging 30,000 feet, board measure, masonry 200 cubic yards. The prices: — Earth, per cubic yard, 25 cents cash, five cents in bonds, and five cents in stock; rock, per cubic yard, $1.20 in cash,five cents in bonds, and five cents in stock; trestle-bridging per M. feet, board measure, 150 in cash, $2 in bonds, and §2 in stock; dry masonry per cubic yard, $2.50 cash, fifty cents in bonds, and fifty cents in stock; track-laying per mile, $250 cash, $10 in bonds, and $10 in stock; track and sidings surfacing, $400 cash, $20 in bonds, and $20 in stock. Switches and frogs laid, each couple, $100 cash, $5 in bonds, and $5 in stock; clearing and grubbing per acre, $40 cash, $3 in bonds, and $3 in stock. (The bonds and stock to be taken at 75 per cent, of their parvalue.) Any extra work outside the agreement to be paid for monthly in cash, with 10 per cent, added for superintendence, use of men and tools. But notwithstanding these estimates and rates the “ bulk price ”to be paid to the plaintiff for the work is $28,500 cash, $4,500 in bonds, and $4,500 in stock, at 75 per cent, of their par value, equalling $6000 of each at par value. Payments to be made on account of the work as often as every two weeks, and payment of cash and bonds on, or before August 1st, 1882, for the total work done up to July 25th. And final payment in cash, bonds and stock found to be due, within five days after completion of the work. In the event that the defendants should fail to continue the work,'and should notify the plaintiff to suspend operations, the latter should be paid certain specified rates for the work done up to that time. And in addition as liquidated damages $1000, if he shall not then have excavated as much as 20,000 yards of material, and $500 if he shall then have excavated more than 20,000 yards. And if it shall be determined to construct only the railroad “from the junction, at station 380, from main line, and to abandon the pleasure line construction from station O. to station 67, the total payments shall be reduced by $4000 cash, $1000 bonds at par, and $1000 stock at par, making the total payments under the contract ag

p. 204

gregate $24,500 cash, $5000 bonds at par, and $5000 stock at par.”

Tbe plaintiff entered upon tbe performance of tbe contract, and continued tbe work until about the first day of August, 1882, when be substantially ceased and shortly thereafter abandoned tbe work uncompleted.

Tbe action No. 1 was commenced August 4th, 1882, to recover for work done up to July 25th, 1882. And tbe plaintiff recovered $12,854, and interest, making together $14,897.78.

Action No. 2 was brought August 17th, 1882. And tbe recovery was $15,988.87, and interest $2,512.73, making $18,501.-10. This was made up, of some work found to have been done after July 25th, and damages for breach on the part of the defendants of the contract; the larger part of the amount of the recovery was for such damages.

The referee found that up to July 25th, 1882, the work done and materials furnished under the contract were 43,000 yards earth excavation ; 142 yards rock excavation, 1-10 mile track laid; 8 acres cleared and grubbed; 30 yards dry masonry;

25,300 feet timber; extra work, . . . $2,727 27

And 10 per cent, added . . . . . 272 73

Making altogether at the contract prices, . . $17,854 00

And deducting payment made, July 10, 1882 . . 5,000 00

Leaves balance of which with interest from Aug.

5th, 1882,.$2,043 78

Makes . $14,897 78

For which he directed judgment in action No. 1: That the whole amount of work done, and materials furnished by the plaintiff, under the contract, were 46,704yards of earth excavation, 1-20 mile of track, surfacing and extra work, $3,947.60, and in other respects the amount of work was not increased any after the 25th July. Thus producing subsequent to that date, 46,704

43,000

-3,704 yards

earth excavation; 1-20 mile of surfacing and extra work, $3,947.60

2 727.27

-$1,220.33, to which add 10 per cent. $122,03.

The referee also finds that after the first day of August, 1882, the plaintiff demanded of the defendants the payment of the money and'bonds due him on the contract, and' they “ refused to pay the same or any part thereof except the sum of $6,000, which the defendants offered to pay to plaintiff on condition that plaintiff would sign a receipt therefor, embodying a condition that said $6,000-should be paid out under the direction of

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the defendants to the laborers for work they had done on said road, as shown by said pay rolls, which plaintiff refused to sign, and defendants refused to pay.”

That the apportional payments provided for in the contract “ were intended by the parties to put the plaintiff in funds to pay Ms laborers and expenses of doing said work, and therefore became a very essential part of the contract.” That on or about the 12th day of August, 1882, the plaintiff abandoned the construction of the railroad, and the further work necessary to complete it, “ for the reason that the defendants refused to perform their part of said contract, in refusing to pay the said cash and bonds due on the first day of August, 1882, for work done up to July 25, 1882, . . . thus depriving him of the means to pay off his laborers and procure their continuance at work.” And as matter of law, the referee determined that the refusal of the defendants to make such payments was a violation and breach of the contract, “which absolved the plaintiff from further continuing the work under the contract,” and that the plaintiff “ has the right to recover whatever damages he has sustained by reason of defendants’ breach of said contract in the particulars stated.”

The referee finds that the expense of completing the work as the plaintiff left it, was $8,000, and proceeds to make the statement that the full price to be paid, is cash, . . $28,500 00

In bonds, $4,500, in stock, $4,500, . . . 9,000 00

Extra work, with 10 per cent, added, . . . 4,842 37

Making.$41,842 37

And deducting amount recovered in action

No. 1,.$12,854 00

The payment made July 10,1882, . . 5,000 00

The cost of completion of the work, . . 8,000 00

-25,854 00

Leaving a balance of.$15,988 37

And concludes that the plaintiff is entitled to recover in tion No. 2, that sum with interest added, making $18,501.10.

The defendants excepted to the several conclusions of fact and law of the referee, and appeal.

McNaughton & Olmsted., Atty’s, and Frank R. Lawrence, of counsel, for appl’ts; J. & D. Van Voorhis, for resp’ts.

There was some controversy on the trial in respect to the quantity of work performed under the contract.

The accuracy of the estimates presented by the evidence of the respective parties, was the subject of fair criticism. Those furnished on the part of the plaintiff were made without measurements, and those on the part of the defendants were estimates aided by partial measurements only. Thus was presented

p. 206

an apparent conflict in the evidence. No actual measurements or estimates were made by the defendants, or their engineers, or those of the railway company, prior to August 1st, of the work done up to July 25. And there is some evidence, tending to prove that then, and thereafter, there were difficulties in the way of making accurate measurements or estimates of the work done, occasioned by various causes for which the plaintiff was not responsible, and that the measurements made on the part of the defendants and estimates founded upon them were not necessarily accurate; that the plaintiff himself and another engaged'in the work were civil engineers, and that they made estimates with knowledge and observation of the work as it progressed. The estimates so made by them were sufficient in extent to cover the amount of work found by the referee. The evidence as a whole in this respect presented a question of fact. And we cannot say, in the light which he was permitted to view the evidence as it was adduced, that his finding is so against the weight of evidence as to justify the disturbance of his finding. We think his conclusion as to the quantity of work done was permitted by the evidence.

There is not a very clearly defined division of the work into that done before and that done after the 25th of July, 1882, but there is some evidence on the subject which enabled the referee to make the severance, and to support his conclusion in that respect. The defendants allege the abandonment by the plaintiff of the work which he undertook to perform under the contract, and that a large number of persons gave notice to the railway company of their claims for labor done, and filed liens against the company for materials furnished and used in the work of construction under the contract in question; that the defendants paid such claims, amounting to $6,940.10, and took assignments. They sought to charge the amount so paid against the plaintiff as counter-claims. The referee did not allow to the defendants the sums so paid, but found that the plaintiff sub-let the work of construction except the trestle-bridge, and the pile bridge work, to Moore and Sullivan, who entered upon the performance of the work; that in the latter part of July the laborers on the work became clamorous for their pay, and insubordinately refusing to work unless paid, and that they did quit on or before July 29th; that Moore and Sullivan with plaintiff’s assent on that day requested the defendants to pay the men or to furnish the money for that purpose, and proposed to give the defendants security that the money should be paid to the laborers in case they furnished it, which the defendants refused to do, after which the plaintiff made the demand that payment should be made to him; that on July 29th, and during several following days, the defendants procured a large number of the laborers to make and file their claims for unpaid services

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against tbe railroad company amounting in all to about $6,940.10 under cb. 669 of Laws of 1871, and after tbe notices of sucb claim were handed to the person on whom the service was intended the claims were assigned to the defendants by the laborers, and the defendants paid to them respectively the amounts of their claims ; that none of these claims have been enforced, and no attempt made to collect them by action against the company, but that the defendants still hold them assignees; that these claims are or purport, to be against Moore and Sullivan, and not the plaintiff. And the referee determined that these alleged counter-claims were not demands against the plaintiff, that as against the railroad they ceased to be enforceable before the answer in this action was served, that the defendant’s hold them as assignees simply against Moore and Sullivan, and that the condition on which the defendants offered to pay the $6,000 to the plaintiff was one they had no right to require. There was no specific contract between the railroad company and the defendants produced or proved upon the trial, but it appeared incidentally in various ways that they were contractors with the company for the construction of the road, and it was evidently assumed upon the trial that they had such relation to it. Their priority by contract was with the plaintiff only, and assuming that the latter had by contract sub-let a portion of the work to Moore and Sullivan, they were accountable directly to the plaintiff only for the performance of their contract, and they were primarily liable for the labor and materials obtained by and furnished to them by their request.

But the work being done pursuant to a contract originally made with the railroad company, it and its property could be charged on default of the contractors, or sub-contractors, to p>ay the laborers, etc. Laws of 1850, ch. 140, § 12, as amended by Laws of 1871, ch. 669, § 2; Laws 1872, ch. 895; Laws 1870, ch. 529. And in the event the company should be required to pay such claims, it might require reimbursement from the party with whom it had contracted to do the work out of which they arose. As a consequence the party taking such contract would have an interest in seeing to it that such claims were paid by his immediate, or any subsequent contractor. And the obligation is implied, if not expressed, that each suceeding contractor will protect the party from whom he takes such relation by contract to perform the work or any part of it embraced in the original contract with the company, against such claims and liabilities by him incurred.

The defendants seemed to have been apprehensive that the money might not-be applied in payment of the claims of the character before mentioned, and therefore required assurance that it should be so appropriated. The plaintiff was unwilling to give a receipt for the money• containing sucha condition.

p. 208

And the $6,000, which, the defendants were then ready to pay, was withheld from the plaintiff, and they (defendants) proceeded to pay the laborers. In aid of this, Moore and Sullivan furnished to the defendants’ agent the pay-roll, and'Sullivan advised such agent that he had sent word to their time-keeper to meet him at a place named, so that payment could be made to the men, and such was the place where the men were paid.

And the referee has found that Moore and Sullivan, with plaintiff’s assent, requested the defendants to pay the men or to furnish the money for such purpose.

By making such payment with the assent of the plaintiff and Moore and Sullivan, the liability to them to that extent of the plaintiff would be discharged, and the payment would be deemed made by the defendants for the plaintiff. And in that view there might be no difficulty in charging the latter with the amonnt if the defendants had not taken assignments of the claims for which they advanced the money to pay. By reason of taking such assignments it is contended that Moore and Sullivan remain liable to the defendants upon the claims, and therefore they cannot be asserted in this action against the plain iff. Treating the primary liability as that of Moore and Sullivan, only, to the men, that is so, unless the peculiar situation and relation of the parties and the right of the claimants to charge the company, and that of the latter to seek reimbursement from the defendants, may be considered and given effect to afford the relief sought by them here. The proceeding attending the act of payment, of having notices served upon the engineer of the company under the statute, and taking assignments, was evidently taken as a matter of precaution, so that the payments might be deemed as made to discharge the company and its property from a liability to pay, and thus protect themselves from liability to it. And while the apparent effect of the assignments was to vest in the defendants the title to the claim as against the parties primarily and personally liable to pay, the purpose evidently was to take such title only as a means of making more effectual their purpose to apply the money so advanced upon the amount of compensation which they, by their contract, had agreed to pay the plaintiff for the work of construction of the railroad, and not with any view to create a liability of any other party to them for the .amount so paid. They in this way have done and probably did do more than was necessary to put themselves in a position to charge the plaintiff with the payment so made, although the question of voluntary payment otherwise may have been raised. Senear v. Woods, 74 N. Y., 615 . The question presented here is not without some difficulty, but we think these payments should and may be allowed to the defendants in this action No. 1. Proceedings were taken to charge the company, and it is not important what the

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inducement was to cause it, if it was legally done. This afforded to the defendants the right to step in and protect themselves by relieving the company. If they had not done this the right oi the company would arise to pay and seek relief from the defendants, and they in turn to charge the plaintiff, and if Moore and Sullivan, as Ms sub-contractors, were first liable to pay, he could require allowance by or reimbursement from them. This circuity of action could result in no advantage to any party, and would in practical effeet finally accomplish the application of the amount involved upon, and in payment to that extent of the contracted compensation for the work. By charging-this against the plaintiff he is relieved from so much of Ms liability to Moore and Sullivan for their work. The taking the assignments of an excessive act, was deemed a precautionary one to protect the defendants in making the payments, and in view of the circumstances, cannot well be treated as an obstacle to the application of the amount of them in reduction of the re-recovery for the work done on account of wMch the money was advanced. The fact (if so) that because no action was commenced against the company to recover the claims, the right to do so was barred before the defendants answered in this action is not important. The payment was made to relieve the company when the right to charge it existed, and after the prelimmary steps had been taken which might result in that effect.

The defendants had no right to maintain any action against the company on account of such claims. As between it and them the primary liability was with the defendants, and as to the company,' the workmen were deemed paid by tMs act of the defendants in any view that could be taken of the assignments. TMs action is brought upon the contract between the plaintiff and defendants to recover for tMs work, and as between them it was deemed done by the plaintiff in performance of such contract. It was on account of tMs work that such payments were made. And they were made with the consent of Moore and Sullivan, who were M some manner acting through or under the plamtiff in the performance of the contract between the latter and the defendants. We think the amount of these payments so made by the defendants, properly should, and can be, allowed to the defendants by way of abatement of the plaintiff’s recovery. The evidence about fares, etc., of the men, said to have been paid by Moore and Sullivan, is somewhat indefinite. NotMng appeared on the pay-rolls in that respect.

They say they informed the defendants’ agent that deduction should be made on that account from the moneys earned by the laborers, which he denies. Moore and Sullivan knowrng that the defendants were proceedmg to pay the men, and consenting to it, gave no information to enable them to make such deduction or to attempt to do it. And it does not appear that

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any arrangement bad been made witb tbe men by which they had become chargeable with any amount paid for their fares, etc. And Charles K. Moore adds, to the effect that they intended to deduct it out of the last payment, that if they did it before, then it would have created some disturbance; and that he did not then know that this was to be the last pay-roll. There is no finding on this subject, and in view of the evidence we are unable to determine that the defendants were required to make the deduction at the time of payment, or that they paid the men more than they were required to pay to discharge their claims for the work they had done. The correctness in the amount of the claims so paid is not questioned. It is contended on the part of the defendants that the plaintiff without cause abandoned the work before full performance of his contract. And that such fact should go in defense of Action No. 1, as the provision of the contract for intermediate payments, must be deemed conditional and dependent upon its complete performance. It is true that the agreement to pay in installments from time to time as the work progressed, rates of prices for it founded upon estimates, was so far conditional that the payments should not •exceed in amount the bulk price to be paid for the entire work, yet inside of that the plaintiff had the right to recover the installments provided for on performance to the time and extent required by the contract, to enable him to demand payment of them subject only to the right of the defendants to allege and •establish by way of abatement such damages as they may have sustained by any subsequent breach of the contract on his part, which is the extent of the defense that could be made founded upon such alleged abandonment. Sickles v. Pattison, 14 Wendell, 257; Snook v. Fries, 19 Barb., 813 ; Tipton v. Feitner, 20 N. Y., 423 . No facts are found and none necessarily established by the evidence which require the consideration in Action No. 1, of the question of the alleged abandonment by the plaintiff •or any further question in that action.

But in action No. 2, such abandonment, its cause and effect have some importance. The referee finds, and it is assumed here that the defendants refused to pay to the plaintiff on the first day of August, 1882, the sum he was then entitled to demand :and receive for work done up to July 25th, and that on or about the 12th day of August the plaintiff abandoned the work for the reason that the defendants refused to pay the amount due on the first of that month. The important question arising upon this state of facts is, whether the plaintiff in consequence of this breach of the contract was entitled to recover by way of damages prospective profits, or such profits as would result to him from a complete performance of the contract. The referee found that by this refusal to pay the plaintiff, he was deprived of •“ the means to pay off his laborers and procure their continu

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anee at work.” And as eonelnsion of law adds tbat snob refusal was a violation and breach of the contract on the part of the defendants, which absolved the plaintiff from further performance ; that he had the right to abandon the work and recover whatever damages he had sustained by reason of such breach. And then proceeds to award him as such damages the difference between the contract price and the estimated cost of the unperformed work of the contract. This was the correct rule for the measurement of damages if the plaintiff was by the defendants prevented from proceeding to complete performance, unless there was something in the contract to defeat the application of that rule. Masterton v. The Mayor, 7 Hill, 61 . It is contended by the defendant’s counsel that the right reserved to the defendants by the provision of the contract to the effect that in the event they should for any reason fail to continue the work, and should notify the plaintiff to suspend or cease operations, a measurement should be made of, and payment made for, the work done at specified rates, operated to defeat the right of the plaintiff to recover damages or to claim anything otherwise than is provided for as compensation by the contract. That provision evidently had reference to a suspension or discontinuance of the work by the defendants for some cause which might arise. They had no purpose to discontinue the work of construction. They urged the plaintiff to proceed, and on his refusal to do so they caused the work by other means to go on to completion. The situation did not come within the provision last referred to of the contract. Danolds v. The State, 89 N. Y., 36 -43. The provision that in case it should be determined “to abandon the pleasure line construction from Station O. to Station 67 . . . the total payments shall be reduced by $4,000 cash, $1,000 bonds at par, and $1,000 stock at par, making the total payments under the contract aggregate $24,500 cash, $5,000 bonds at par, and $5,000 stock at par,” was made effectual by abandonment of the construction of that branch of the line of road as appears by the uncontradicted evidence of the plaintiff, which should, as against him, be treated as controlling the disposition of that question. If this fact had been observed and adopted by the referee, his estimation of the damages would have been $5,500 less than the amount awarded by him to the plaintiff. It appears that the case contains all the evidence which in this court presents the question of fact upon the evidence, although no request was made to find and no finding made by the referee in that respect.

The more serious inquiry remains, and is, whether in any view which may be taken of the evideuce, the plaintiff was permitted to recover as damages the prospective profits which the completion of performance by him of his contract would have given him. The right- to such relief does not arise out of every breach

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of a contract for tbe performance of services, but is dependent upon that which operates as a denial of the right to proceed to completion of the work contracted for. Mere default in payment of an installment when it becomes due is not a denial of the right of the contractor to continue in the performance of the service. And although it may he a breach which would permit him to abandon the work and recover for that already done, it would not enable him to recover the damages which the law would give for refusal to let him proceed in performance of the contract. There was no obstruction put in the way of such performance, other than the effect of the refusal to pay the installment due the first of August. The referee has found that the provision for payment as the work progressed “ was a very essential condition bearing directly upon the performance of the contract by the plaintiff.” And that Moore and Sullivan were “ unable to go on with the same in consequence solely of defendant’s refusal to pay the moneys due according to their contract.” There being nothing in the contract declaring the effect of failure to make any such payment, the question is one of the legal consequence of such default. Our attention is called to no case, yet, holding that a breach of a stipulation to pay can be treated in legal effect as a denial of the right to proceed in the .performance of a contract to perform services to completion by the other party, or as creating liability to recovery of prospective profits by way of damages as the consequence. The failure to pay gives an immediate remedy by action to recover the stipulated amount, and this is not inconsistent with the right to continue to go forward with the work.

The cause which permits the recovery of such damages rests upon a rule of law, having some degree of certainty, and is founded in the fact that the one party is prevented by the act of the other from realizing the benefit which the contract furnishes. And he is therefore entitled to recover the value of the stipulation or covenant he has taken of hint who defeats such right. Such value is the amount of profits to result from performance. An agreement to make payment is generally an essential one, and the consequences of default in payment, may, in fact, be more or less prejudicial according to circumstances, but in legal contemplation they are the same. The pecuniary condition and responsibility of the parties have no bearing upon this question. The rights at law flowing from or produced by a breach of contract, .arise at once from it, and will support an action. If default in payment alone would afford a remedy as for exclusion from further performance the right of action and of recovery of the entire value of the contract would immediately follow failure to pay, although it arose from mere temporary want of readiness to make payment.

In this case the legal right of the plaintiff to proceed in the

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performance of the contract was not affected by the default of the defendants. But it is said that the defendants sought to and did embarrass the plaintiff by inciting the laborers to insist upon payment fortnightly, when otherwise they would have been content to take their pay monthly.

There is no finding on that subject in this action No. 2, to that effect. And in view of the evidence there is no occasion here for considering that question as bearing upon the proposition now under consideration. The men became insubordinate and quit work, because they did not receive their pay as promptly as they desired, and this was probably occasioned by the default of the defendants, and may be attributable to a breach by them in that respect of the contract, and as one of its consequences, as it is likely that the plaintiff was not, nor were Moore and Sullivan, prepared to pay them without receiving the funds from the defendants, but the latter early offered to furnish the money for that purpose upon the condition that it should be used to pay the men. We do not regard this as important upon the question here in its legal aspect.

The views taken of this case lead to the conclusion that the plaintiff was justified by the breach on the part of the defendant in abandoning the further performance of the contract and entitled to recover for the work done; but the breach not being such as to deny to him the right and power to go forward with the work and perform, he could not recover as damages the value of his contract or (what may be understood to mean the same thing) prospective profits.

There is nothing in the terms of the contract characterizing the consequence of default in payment of an installment other than such as may be implied by law. In view of the finding by the referee of the quantity of work done under the contract, it amounted to.$22,76 48

The recovery in Action No. 1, $12,824, and payment, $5,000 . 17,854 00

The balance unpaid is.$4,907 43

This result is reached by giving to the plaintiff the benefit of the payments provided by the contract to be made on the final estimate of the work, when completed, in stock, for which the breach of the contract as found by the referee permits the allowance, to the extent of the work performed. Pinney v. Gleason, 5 Wendell, 393. This computation makes the amount awarded by the referee as damages, $11,080.94.

If these views are correct the judgment in action No. 1, should be reversed and a new trial granted. Costs to abide the event, unless the plaintiff stipulate to deduct from the amount of the recovery, $6,940.10, and interest thereon from August 5th, 1882,

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and in that event the judgment so modified, and as modified, affirmed without costs of this appeal to either party.

And in Action No. 2, the judgment should be reversed and a new trial granted, costs to abide the event unless the plaintiff stipulate to deduct from the amount of the recovery, $11,080.94, and interest thereon from August 17th, 1882. And in that case the judgment be so modified, and as modified, affirmed without costs of this appeal to either party.

Smith, P. J., Barker and Haight, J. J., concur.