Koon v. Greenman

7 Wend. 121 | N.Y. Sup. Ct. | 1831

By the Court,

Sutherland, J.

Where a special contract is rescinded, or performance is prevented by the defendant, and the plaintiff seeks to recover for the work done under the general counts, the defendant may give the special contract in evidence with a view to lessen the quantum of damages. So far as the work was done under the special contract, the prices specified in it are, as a general rule, to be taken as the best evidence of the value of the work. Where it does not appear that the work was rendered more expensive to the plaintiff than was contemplated when the contract was made, or than it otherwise would have been in consequence of the improper interference of the defendant, or of his neglect or omission to perform what by the contract he was bound to do, the contract prices should be held conclusive between the parties. But if the defendant neglect to furnish the materials which he was to find, in due time, so that the plaintiff is obliged to do his work at a less favorable season, and at an additional expense, such additional expense ought to be taken into consideration, and added to the contract price. This was the rule recognized by this court, in Dubois v. The Delaware and Hudson Canal Company,4 Wendell, 285, and it appears to me to be the just and legal rule of damages in such cases. 1 Holt. N. P. 236. 1 Stark. B-. 275. Peake’s Cas. 103. Bull. N. P. 139. 10 Johns. R. 36. Saund. on Plead. 4, 5, 6. The' court below erred, therefore, in their decision upon this point

I think the court also erred in deciding that the suit commenced by Koon against Greenman, before a justice of the peace, was notin judgment of law commenced before this suit. The summons in that suit was issued and delivered to a constable on the 6th December, 1828, and was served on the 10th. The capias in this suit was issued on the 8th of December. ^le issl™g °f the writ, as a general rule, is the commenement ^ ^ act[on- 3 j 0hns. Cas. 145. 1 Caines, 69. 2 Johns. R. 342. 3 id. 42, 15 id. 326. 18 id. 14. 17 id. 53. 4Cowen, 158. 5 id. 519. And the issuing of a warrant or summons in a justice’s court is the commencement of the suit there. 3 Caines, 133. But it is said in this case that the instructions which the constable swears he received from the justice when the summons was delivered to him, not to serve it until he received further orders, rendered it a dormant writ until those orders were given; and that they were not given until after the writ in this suit was issued. It is not necessary to decide in this case what would be the effect, under such circumstances, of instructions given by the plaintiff in a writ to the officer to delay the serving of it until further orders; because the evidence clearly shows, that if any instructions were given by the justice to the constable, they were given without the knowledge or authority of the plaintiff in the summons. The justice, however, says that he merely told the constable that he need not be in a hurry to serve the writ, as there was some probability the parties would come to a settlement: but that he had no authority from Koon to give the officer any instructions to delay the service. The justice was not the agent of the plaintiff for any other purpose than to issue the summons in the usual manner. The rights of the plaintiff ought not to be prejudiced by the unauthorized acts or declarations of the justice.

It is not denied that if the suit before the justice was first commenced, it was a bar to this action, as the plaintiff in this suit was bound to have set off in that suit the subject matter on which this is founded. Laws of 1824, p. 282, § 8. 1 R. L 389, § 6. 3 Johns. R. 137,428.

Judgment reversed.