Goodwin v. Kirker

2 Hilt. 401 | New York Court of Common Pleas | 1859

By the Court, Hilton, J.

This action is upon a parol contract made between the parties in respect to shoring up the walls of a building owned by the defendant. The defence is that no woik was performed under the contract; and also, that before any work was attempted, the defendant rescinded the contract, and notified the plaintiff not to proceed under it. On the trial before the justice, the evidence was conflicting as to whether the plaintiff did the work thus contracted for, and his finding upon this question cannot be disturbed.

Upon the question as to whether any work had been performed by the plaintiff at the time the defendant notified him not to proceed, the plaintiff testified that nearly half of the work had been done before the notice was given; while, on the contrary, the defendant testified that the work had not then begun.

Evidence of this nature was clearly insufficient to support the plaintiff’s action upon the contract. The notice thus given put an end to the defendant’s liability upon the contract for any work subsequently performed under it, and left the plaintiff to his action for the value of any work he had previously performed; and for such damages, in addition, as he might show to have resulted from the defendant’s breach of the agreement. 2 Parsons on Contracts, 193. DuBois v. The Delaware and Hudson Canal Co., 4 Wend. 285; Masterton v. The Mayor, &c., of Brooklyn, 7 Hill, 61. This is not such an action; and if it was, the testimony at the trial showed no ground upon which the plaintiff could recover.

The evidence respecting the contract for shoring up, made between the plaintiff and Woodruff, although not very material, yet, it seems to me, was properly admitted for the purpose oí showing the nature of the contract upon which was engrafted the parol agreement constituting the ground of the present action.

Judgment affirmed.