266 A.D. 347 | N.Y. App. Div. | 1943
Defendant was the successful bidder on a contract for the construction of certain public works. Plaintiff sued upon a claim that while this work was being advertised there was an oral agreement between plaintiff and defendant to the effect that plaintiff would not submit bids for the entire work, but would give defendant, and no one else, bids for the steel work; that defendant would use plaintiff’s prices on the steel bid submitted and, if defendant’s bid was accepted, plaintiff was to perform the steel work and receive the portion of the contract price represented by its bid for such steel work. The making of any such agreement was denied by defendant. The issues thus raised were submitted to the jury.
The trial court in its main charge correctly advised the jury that if plaintiff were entitled to recover a verdict in its favor, it should receive as damages the difference between what it would have cost the plaintiff to perform the contract and the amount it had agreed upon for such performance.
According to the testimony of one of plaintiff’s officers, this difference would be $80,896.21. Defendant offered no proof "on the question of damages. As the resume of the contentions of plaintiff’s witness, a written computation of the cost of materials and labor, and sundry other items required to complete the work, was put in evidence as Plaintiff’s Exhibit 12. While
After the jury had retired it sent in a question to the trial court as to whether the jury was to fix the amount of damage, if the verdict was for the plaintiff. The trial court answered the question in the affirmative. The jury then returned to the court room and eleven jurors reported a verdict for the plaintiff for $10,000. One juror dissented and voted to grant $25,000 damages. Thereupon, on plaintiff’s motion, upon the ground that the verdict was inadequate, the jury was directed to retire to reconsider its verdict. Defendant objected to this procedure, but the trial court thereupon advised the jury that there was no evidence to warrant a finding of $10,000 or of $25,000 damages ; that plaintiff, if entitled to recover at all, was entitled to recover the difference between the contract price and the cost of performance. The court called the jury’s attention to Exhibit 12 containing the computation of damages, and stated that, while the jury might reach some different conclusion on some of the figures in the exhibit, a figure of $10,000 or $25,000 had no justification in the evidence.
A juror then asked a question as to whether they were required to find for $80,896.21. The court then stated that the jurors were to take the exhibit mentioned, and if they found some discrepancies in the figures, they might find differently as to the amounts claimed, but that they simply could not go off and speculate so as to say the damage was $10,000 or $25,000, without some basis in the evidence for it.
A second juror then asked the question whether they were required to find for $80,896.21 or nothing. The court repeated that the jury was to take the exhibit, and if it found something wrong with the figures in the exhibit, or did not agree with the cost, then it was at liberty to make some adjustments.
In addition, we find that the verdict of the jury concerning the existence of the contract was against the weight of the credible evidence, in the light of all of the testimony, including the written documents.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Townley, Untebmyeb and Dobe, JJ., concur; Martin, P. J., concurs in result.
Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.