Wetmore v. Jaffray , 16 N.Y. Sup. Ct. 140 ( 1876 )

BaeNARd, P. J. :

I think the contract is admitted by the answer. The complaint avers that the plaintiff agreed to furnish board and rooms for the defendant and liis family, and the defendant agreed to pay therefor eighty-five dollars per week for the space of one year from March 24, 1815. The defendant admits that he did make an agreement with the plaintiff to board and lodge with her for a space of time equal to one year from the 24th March, 1815, to the 24th March, 1816, at the rate of eighty-five dollars per week. In a pleading we must assume an admitted agreement to be a legal agreement. It is too late, therefore, for defendant to question the sufficiency of the proof of the agreement. Under this agreement the defendant and his family were lodged and boarded at plaintiff’s house by her from 24th March, 1815, until the 21th May, 1815. That defendant paid according to the contract while he remained. There was a question of fact as to justification of defendant in leaving plaintiff’s house. The referee has found this issue in favor of plaintiff, and the evidence is so conflicting that the decision of the referee thereon must stand. There is, then, an agreement; it was broken on the twenty-seventh May by defendant without legal right. On the twentieth August plaintiff gave up the house in which she was to board and lodge defendant. Between the time defendant left and the twentieth August plaintiff had put boarders in the defendant’s rooms and had received $416 on account thereof.

Under this state of facts the first legal question is, can the plaintiff sue before the end of the year ? I think it clear she may. The _ contract was broken on twenty-seventh May. She has her action as soon as there is a breach. The contract is an entire one, and there can be but one action for the breach. (Colburn v. Woodworth, 31 Barb., 381.)

The plaintiff can recover no damages, except those suffered at the time of the commencement of the action. The plaintiff owed the duty to'defendant to let the rooms to other lodgers and thus relieve the defendant. ^* (Wilson v. Martin, 1 Denio, 605; Dillon v. Anderson, 43 N. Y., 231.)

She put the duty out of her power on 20th August, 1815, so that her damages must have been suffered before that date. I think the defendant is not entitled to have one-half deduction made for his absence under the contract. That was permitted if he stayed and kept the rooms. In that case the plaintiff would have furnished no board. After the contract was rescinded plaintiff’s duty was to relet the rooms, if possible. She did so.

I think the referee adopted an incorrect rule of damage. The utmost amount would be the profit the plaintiff would have made if the defendant had performed. If the defendant had stayed until August twentieth plaintiff would have received $1,020; for this she would have furnished rooms and board. She did neither, but furnished substantially the same rooms and board to others for which she received $4ff6.

If the defendant had performed his contract the plaintiff would have been benefited $102.50, as plaintiff testifies, per month, which would be $282; from this is to be deducted the profit on the boarders the plaintiff put in defendant’s rooms.

The case does not disclose what this is, if any thing. Neither does the case show that plaintiff suffered loss by them. I can assume neither profit or loss under the evidence and think, therefore, that the judgment should be reduced to $282, and affirmed for that sum without costs to either party upon appeal.

Present — Baenaed, P. J., Peatt and Dtkman, JJ.

Judgment modified in accordance with opinion of Justice BAENAED.