Anthony v. Moore & Munger Co.

120 N.Y.S. 402 | N.Y. App. Div. | 1909

McLaughlin, J.:

The plaintiff, owned an automobile chassis and the defendant, for a stipulated consideration, agreed to build and place upon it a body within a stated time; also to furnish other materials and make certain repairs. The complaint alleges that the defendant failed to construct the body within the time agreed upon and that the work and materials furnished were of inferior quality and that the repairs were not properly made, to plaintiff’s damage in the sum of $15,000. The plaintiff had a verdict of $2,923, with interest, and from the judgment entered thereon and an order denying a motion for a new trial, defendant appeals.

At the trial the plaintiff was permitted, against defendant’s objection and exception, to introduce testimony for the purpose of showing what the value of the automobile actually was when delivered to him by the defendant and what it would have been if the work and materials contracted for had all been properly done and furnished,, claiming as his damage, aside from the question of delay, the difference between these two amounts. The court charged, in submitting the case to the-jury (to which'the defendant excepted): “ If, however, you believe that the work which the defendant had agreed to do was not workmanlike or that the materials furnished were not as agreed, or both, in some or all of the matters claimed by the plaintiff, he would be entitled to your verdict in an amount which would fairly and reasonably represent the difference between the value of the automobile as it was when the defendant, delivered it to the plaintiff at the end of December, 1906, and what its value would have been if the agreed work had been properly done.” •

Such testimony was improperly admitted and the instructions were erroneous. Had the defendant contracted to build an automobile, this would have been the proper measure of damage, but that was not the contract. What the defendant agreed to do was to build a body and place it upon a chassis furnished by the plaintiff, and also to furnish other materials and make certain repairs upon the machine. The plaintiff, in his complaint, alleged that the chassis which he furnished ;to the defendant was worth $12,000, and if the defendant had performed its contract, then the machine would have been worth $15,000. So far as the defendant failed to furnish the new body and other materials according to the specifications, the plaintiff was entitled to a recovery which would leave him as well' off as he would have been had the contract been fully performed. The true measure of damage, therefore, which would bring about this result, was the cost and expense reasonably necessary to make the work and materials conform to the requirements of the contract. (13 Cyc. 159; Malony v. Brady, 18 N. Y. Supp. 757; Stillwell Mfg. Co. v. Phelps, 130 U. S. 520.) The valúe of the chassis had nothing to do with this, and it was error to admit evidence as to the value of the machine after the top had been placed upon it and the repairs made, and make that value the basis in estimating the damage. (Monitor Millk Pan Co. v. Remington, 109 N. Y. 143.) '

The court also erred in charging the jury that the plaintiff was entitled to interest. The damages were unliquidated and there was no means accessible to the defendant of ascertaining, by computation or otherwise, the precise amount to which the plaintiff was entitled. In such cases interest is not allowable. (Gray v. Central R. R. Co. of New Jersey, 157 N. Y. 483; Mansfield v. N. Y. C. & H. R. R. R. Co., 114 id. 331; Delafield v. Village of Westfield, 41 App. Div. 24; affd., 169 N. Y. 582.)

The judgment and order appealed from must, therefore, be reversed and a new trial ordered, with costs to appellant to abide event.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

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