126 Mass. 512 | Mass. | 1879
The action against the plaintiff, in which this defendant recovered substantial damages, was founded on an alleged failure of the plaintiff in the case at bar to perform the contract on which he now sues. The answer was a general denial, and put in issue the performance, as well as the amount of injury sustained by failure to perform. The declaration set forth a partial payment, while the work was in progress, as one of the elements of damage. No recovery could have been had except on proof of failure to perform. The judgment was for. the damage sustained by the defendant in consequence of the non-performance. We must presume that the action was properly tried, and that the damages were assessed on correct principles. The judgment, therefore, established the fact that, apart from all advantage and benefit received by this defendant from what was done in the way of performance of the contract, it had been injured in the transaction to the extent of the damages for which the judgment was rendered in its favor. The mistake of the plaintiff is in supposing that, because damages were recovered against him in the former action for the non-performance of his contract, he is now in substantially the same situation as if he had performed it; whereas the damages recovered must have been computed in view of the fact that this defendant was released, by the failure of the plaintiff to perform, from the further performance of its undertakings in the contract. The whole
Judgment for the ^defendant.
