48 Vt. 116 | Vt. | 1874
The opinion of the court was delivered by
In the action of-assumpsit on the common counts, it is as necessary for the plaintiff to prove the declaration as it would be if he declared specially. He cannot recover on the common count for work and labor done and performed, without
The application of these principles to the facts stated in the exceptions, renders it manifest that the court should have complied with the defendants’ request in regard to the plaintiff’s right .to recover the second item of his specification under the declaration. The plaintiff had contracted to put in certain wing walls around the bakery of the defendants, at a specified price per yard. Before the time arrived for the plaintiff to commence putting in the wing walls, the defendants notified him not to proceed under the contract, and thereby terminated it. Tne plaintiff gave evidence which satisfied the jury that before he received the notice terminating the contract, he had done work in quarrying stone to
We think, also, there was error in the charge of the court on the subject of damages, if the declaration had been special. The court allowed the plaintiff to recover the value of his labor in quarrying the stone. This would be an element to be considered, in ascertaining the damages. The rule of damages in such cases, is the amount that the plaintiff has lost by the defendants’.wrongful termination of the contract. If the stone when quarried were of no pecuniary value, then the plaintiff would have been damni-fied to the full extent of the loss of his labor in quarrying them. It does not appear from the exceptions that they were when quarried, entirely valuless. For aught that appears, they might have been worth enough more than when in the quarry, to have fully compensated the plaintiff for his labor. If so, he suffered no damages in this particular by the defendants’ wrongful termination of the contract.
The defendants claim that the court erred in allowing the plaintiff to recover any damages on this item, because they claim that
If the printed extract from the charge contains all the instruction which the court gave the jury on this question, we should think that further instruction was necessary to properly submit this point in the case to their consideration. As this was not the point to which the defendants’ request was directed, and as only so much of the charge is given as related to the request, we cannot presume that further instruction was not given on this point.
Judgment reversed, and cause remanded.