16 Wis. 581 | Wis. | 1863
By the Court,
The only question in this case is as to the sufficiency of the complaint. It professes to state three causes of action. The first alleges a contract between the plaintiff and defendant, by which the plaintiff was to do the carpenter work upon a house for the sum of five hundred and sixty dollars; $250 to be paid as the work progressed, and
The second cause of action, is for work and labor, being mostly extra work, for which the plaintiff claims $169.81, averring that nothing had been paid except as afterwards admitted.
The third, set forth the making of the contract, performance by the plaintiff, as far as it was possible, and that he was hindered and prevented from finishing by the fault of the defendant, by which he was damaged to the extent of forty dollars.
There is then a general admission that the sum of #539.56 had been paid, and a claim for a balance of #232.25.
The only error relied on by the appellant, was the refusal of instructions, the substance of which were, that the complaint was insufficient to authorize a recovery. To sustain this position, he attacks the first count, and insists that as it admits the work was never completed, and does not allege the value of what was done, and admit? the payment of a sum greater than the amount to be paid as the work progi essed, therefore it shows no cause of action. He relies upon a class of authorities which hold that in actions where the plaintiff has been prevented from performing by the fault of the defendant, the rule of damages is not necessari iy the contract price, but the value of what was actually done, and such damages as accrued by the breach of the defendant’s contract. But, even admitting this rule to be applicable to the first count, and that it does not show a right to recover the entire contract price, we do not think it can be held so defective as to justify the instruction asked by the appellant, to the effect that no recovery could be had, even though the jury should find anything in the plaintiff’s favor. It is very obvious that this count states facts
So BeoNSUN, Judge, in Wilson vs. Martin, 1 Denio, 606 uses the same expression. He says : "the plaintiff was not entitled, as a matter of course, to the stipulated price,” &c. This language seems to assume that the damage is the contract price, unless something appears in mitigation. So in Colburn vs. Woodworth, 31 Barb., 383, cited by the appellant the court expressly says that where a contract for service is broken by the employer, the employee has three remedies, and the last one is, “ he may wait until the termination of the period for which he was hired and claim as damages the wages agreed to be paid by the contract.” The case of Costigan vs. R. R. Co., 2 Denio, 609, is a very strong case in support of the views I have advanced and cites many authorities. In commenting upon several of the authorities cited by the appellant here, the court says : “ In all the cases which I have cited, the facts on which the delinquent party sought to bring the amount to be recovered below the sum agreed to be paid were proved or offered to be proved on the trial. Nothing was left to inference or presumption, and it was virtually conceded that the onus of the defense rested on the defendant.” I can see no distinction between that case and those referred to in it,
The judgment is affirmed with costs