86 N.E.2d 782 | Ohio | 1949
Defendant's principal complaint is that the trial court erred in rendering a judgment for plaintiff, which the opinion of the court indicated was for the full amount of the seven monthly payments, although plaintiff was relieved from performing any of the services it had agreed to render during the remaining seven months of the yearly term provided for in the contract.
Upon the breach of a contract by a defendant, the plaintiff may elect to rescind the contract and sue for the value of the performance rendered. Wellston Coal Co. v. Franklin Paper Co.,
The plaintiff in the instant case did not elect to rescind but sued on the contract. If the contract had been fully performed before defendant's repudiation of it, plaintiff would have been entitled to the full compensation provided for in the contract. Shawhan v. Van Nest,
While this court refused to follow the James case in Roller
v. Patrick,
In the instant case, evidence was offered tending to prove that, if the contract had been performed for the remaining seven months of the yearly term, the plaintiff would have received more than the $1,000, claimed in the petition on account of agency commissions, in addition to the seven monthly 150-dollar payments.
However, there is no evidence in the record tending to show the value to plaintiff of its being relieved from performance during those seven months. The provisions of the contract, and other evidence in the record, indicate that plaintiff may have been relieved from doing some work, but there is no evidence to show how much it would have cost plaintiff to do that work.
If plaintiff would have been able to perform that work without incurring any additional cost, so that relief from the obligation of performing would not involve any benefit of value to plaintiff, plaintiff might be entitled to damages at least equal to the amount allowed it by the trial court. 5 Williston on Contracts (Rev. Ed.), 3793, Section 1352. On the other hand, if the performance of such work would have cost plaintiff more than the amount claimed in the petition, then plaintiff would be entitled to recover nothing on the allegations contained in the petition. See Doolittle Chamberlain v. McCullough,
When a plaintiff sues on a contract to recover the amount he would have received for the full performance prevented by a defendant's breach, he seeks in effect to recover as damages the profit from performance of the contract which profit defendant's breach prevented him from earning. In such a case, plaintiff has the burden of alleging and proving not only (a) what he would have received from the performance so prevented, but also (b) what such performance would have cost him (or the value to him of relief therefrom). Unless he proves both of those facts, he cannot recover as damages the profits he would have earned from full performance of the contract. UnitedStates v. Behan,
There are authorities which, in cases similar to this, support a recovery from the defendant for the full amount promised. See International Textbook Co. v. Martin,
We are not unmindful of the decisions in Roberts et al.,Partners, v. Montgomery,
On facts similar to those in the instant case, some authorities put the burden of proof on defendant to show the value to plaintiff of plaintiff's being relieved from performance. See International Correspondence School, Inc., v.Crabtree,
There being no evidence tending to prove the cost of performance by plaintiff under the contract or the value of the benefit to plaintiff of being relieved from the performance prevented by defendant's breach, the judgment of the Court of Appeals should be reversed.
The only assignment of error in the Court of Appeals which would not involve a weighing of the evidence was that "the court erred in assessing damages against the defendant in the sum of $1,050, without any proof of damages suffered by the plaintiff." However, the trial court did find on the evidence that a contract existed between the plaintiff and the defendant and that it was breached by the defendant. There is substantial evidence to sustain those findings. The plaintiff was therefore entitled to recover at least nominal damages for the breach of contract. First Natl. Bank of Barnesville v. Western UnionTelegraph Co.,
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur. *529