Goldstein v. The Godfrey Co.

Per Curiam.

On September 6) 1907, the plaintiffs contracted with the defendant to make and install in a store, intended to be used as a family liquor store at ¡Ninth avenue in this city, certain fixtures, at an agreed price of $218; and, if the work was completed by September nineteenth, the price was to be $225. Some days after the plaintiffs began work they were ordered by the defendant to stop, the reason assigned by the plaintiffs being that the defendant was having trouble in obtaining a liquor license; the defendant claiming that the cause of the stoppage of work by him was that the shelving was being put in with nails and not in grooves. Upon this question the court below found for the plaintiffs and gave a judgment for the plaintiffs in the sum of $200. The sum of $25 had been paid by the defendant to apply upon the contract price. It will be seen that the court below gave judgment for the full contract price. This was error. The contract, concededly, had not been fully completed when the defendant ordered the stoppage of the work. In a case where the plaintiff sues, not for the work actually done, but for breach of the contract, the measure of damages ordinarily is the difference between the price agreed to be paid for the work and what it would cost to complete it. In the case of Miller v. Hahn, 23 App. Div. 48, the court held that plaintiff’s damages were loss of profits and the value of the material used, provided it was shown that such had become useless for any other purpose; or, if the material in its altered state has value, the difference between its value before and after it had been cut up for use. In the case at har, the proper measure of damages would be the actual loss sustained by the plaintiffs, taking into consideration the loss in value of the materials used at the time the work was stopped and the profits which plaintiffs would have reaped had they been allowed to complete the job. The judgment must, therefore, he reversed.

Present: Gildersleeve, MacLean and Seabury, JJ.

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