Lydecker v. Valentine — 54 N.Y. St. Rep. 73

Majority

p. 73

Elizabeth A. Lydecker, Resp’t, v. Henry M. Valentine, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Contract—Board and rooms—Damages for breach.

In an action for breach of contract for room, and board for a specified period, by reason of defendant leaving before the expiration of the term, the-damages cannot be the whole contract price, but only the profits which the plaintiff would have made if defendant had carried out the contract.

Appeal from judgment in favor of plaintiff, entered upon a. verdict for $201.

Snider & Hopper, for app’lt; A. S. Tompkins, for resp’t.

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 fourteen dollars 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 id., 432.

Judgment reversed and new trial granted, costs to abide the event.

Barnard, P. J., and Dykiian, J., concur.