McKegney v. Illinois Surety Co. , 167 N.Y.S. 843 ( 1917 )

Laughlin, J. (concurring) :

I concur in the reversal of the judgment on the ground that the court erred in requiring plaintiff to prove the reasonable value of each item of the work and for other errors in excluding evidence; but I do not agree with Mr. Justice Scott that the damages for a breach of a construction contract may be shown by the amount agreed to be paid by a contract let not pursuant to statute or even competitive bidding but privately, for finishing the work without other evidence tending to show the cost of completion, or that the amount agreed to be paid by the contract was the reasonable cost or value of the work. In Mayor, etc., v. Second Ave. R. R. Co. (102 N. Y. 572) it was held that the cost of completion by day labor at the current wages and by the purchase of material in the usual way was presumptive evidence of the damages in the absence of fraud or facts tending to impeach the reasonableness of the expenditures; but that decision is not, I think, authority for the proposition that the amount agreed to be paid for completion is -prima facie evidence of the damages sustained, for there is no presumption that in such case the contract for completion would not be let for more than the reasonable cost of completion. In the other cases cited by Mr. Justice Scott this point was not presented for decision. The rule is well settled that in an action by a vendor for a breach of a contract to purchase goods to be manufactured or by a contractor for a breach in refusing to permit the performance of work, the damages recoverable are not to be measured by the difference between the contract price and the cost of performance to the plaintiff under a special contract, but the difference between the contract price and the reasonable cost of performance. (Devlin v. Mayor, 63 N. Y. 8; Isaacs v. Terry & Tench Co., 125 App. Div. 532; Belle of Bourbon Co. v. Leffler, 87 id. 302; McManus v. American Woolen Co., 126 id. 68.) This, I think, is the safer rule and ordinarily there should be no difficulty in following it. The plaintiff could have asked the contractor or whoever estimated for him what would have been the reasonable cost of completing the work left unperformed, and if it was a bona fide contract this would, of course, produce the same result; but I know of no precedent for proving the damages by merely proving the amount agreed to be paid for completion, and I think it unwise to establish such a precedent for it would often result in casting the burden of proof on the defendant with respect to the damages whereas it rests on the plaintiff. If it be held that the amount agreed to be paid for completion without other proof is prima facie evidence of damages then that will stand as some evidence to be weighed by a court or jury and will authorize a recovery on that basis, unless the defendant conclusively impeaches it or overcomes-it, quite analogous to the doctrine of res ipsa loquitur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.