116 Ky. 608 | Ky. Ct. App. | 1903
Opinion op the court by
Reversing.
The appellee is a corporation organized under the laws of the State of Ohio. In 1890 its corporate name was Bennett & .Peck Heating and Ventilating Company — subsequently changed by law — and in that year it entered into a contract with appellant by which it agreed to manufacture and install in a public school building then contemplated being erected by the municipality a system of- air furnaces for the purpose of heating it in winter, for which it was to be paid the sum of $2,170. At the same time it made another contract with appellant, by which it agreed to place in the school building a dry-closet apparatus, for which it was to be paid the sum of $495. These contracts were in writing, and are hied as exhibits with the petition. They contain the following guaranty: “We guarantee the castings, and will furnish repairs for the same, which may be needed, free of cost for a period of ten years following.” “We guarantee' to heat all
The' making, of the contract and the authority so to do at the time it was entered into by the parties, was not, and could not be, denied. The proper incorporation of appellee under the laws of the State of Ohio, while placed in issue by the pleadings, was abundantly established by uncontradicted evidence. The municipality having authority to make the contract in question, and having made it, no subsequent legislation could abrogate or invalidate it, and therefore no change by legislative enactment in the status of the city, with reference to the control of the school building, could alter
But we think the court erred in giving the measure of damages in instruction No. 2, which is as follows: “The measure of damages is the difference between the contract price and what it would have cost to complete the work by plaintiff at the date of the breach of the contract.” There should have been added to this: “Less such a sum as will be «reasonably sufficient to furnish repairs for the castings of the furnaces, operated with ordinary care, for a. period of ten years.” In Sedgwick on Damages (section 618) it is
For the reasons indicated, the judgment is reversed for proceedings consistent with this opinion.