Moran v. McSwegan — 33 N.Y. Super. Ct. 350

Majority

p. 350

JOHN MORAN, Plaintiff and Respondent, v. JOHN McSWEGAN, Defendant and Appellant.

Headnote

Contract nor Work and Materials.—Damages, Measure op, in case op Breach by Employer.

1. When the employer prevents the employee from performing and completing the contract, the measure of damages, in an action by the employee, is the fair value of the materials and work furnished and performed.

Before Barbour, Ch. J., Monell and Jones, JJ.

Decided June 3, 1871.

This action was brought to recover the Value of certain materials furnished and services performed by the plaintiff, for the defendant, in altering and repairing the house of the latter. The cause was tried before a referee, who found, that in March, 1868, a contract in

p. 351

writing was made between the parties, whereby the plaintiff undertook to make certain alterations upon the defendant’s house, and the latter promised to pay him therefor, the sum of three thousand one hundred and fifty dollars; that the plaintiff thereupon entered upon the performance of the work, and proceeded therein until the 11th of May, 1868, when he was forbidden and prevented by the defendant from proceeding with his work; that certain other work was done by the plaintiff, under a special agreement between him and the plaintiff; that the fair value of the work and services so performed by the plaintiff, was two thousand seven hundred dollars ; that he had received from the defendant one thousand dollars, leaving a balance, including interest up to the date of the report, of two thousand two dollars and twelve cents; and the referee thereupon held and decided, as matter of law, that the defendant broke and rescinded the contract, and, consequently, the plaintiff was entitled to recover from the defendant, the reasonable value of the work and materials furnished by the former, with interest thereon, and that he was entitled to a judgment for the above sum, with costs. The case comes before the general term upon an appeal from the judgment thereupon.

Jerome Buck, for appellant.

H. Andrews and H. Ellis, for respondent.

Upon a laborous and careful examination of the testimony in this case, of six hundred and fifty folios, I am satisfied that the evidence exhibited by the plaintiff upon the trial, was sufficient, if credited by the referee, to justify all his findings of fact.

There is no merit in the objection, that certain facts were not found by the referee. He has found all the

p. 352

facts necessary to entitle the plaintiff to a judgment, and was not bound to find upon other questions of fact, unless requested to do so by counsel, which does not appear to have been done.

The measure of damages adopted by the referee was correct, The plaintiff was entitled to recover the fair value of his work and materials, furnished and performed under the contract, up to the time when he was prevented by the defendant from proceeding farther (Clark v. Mayor of New York, 4 N. Y. 338 ).

The judgment should be affirmed, with costs.

Cases cited

Clark v. Mayor of New York 4 N. Y. 338 N.Y. p. 352