Lead Opinion
The action is upon a bond given to plaintiff by the Payne Construction Company as principal and the defendant as surety conditioned for the faithful performance by the prin
The construction company defaulted in the performance of the contract after a very small proportion of the whole work had been completed, and the plaintiff after giving due notice to the contractor and the surety proceeded to enter into a contract with another contractor for the completion of the work for a lump sum price which somewhat exceeded the price for which the construction company had agreed to perform the work. .This action is brought in part to recover the excess cost. To support so much of its cause of action plaintiff attempted to prove the contract he had made with the second contractor for the completion of the work, and the sums paid thereunder. This proof the trial court refused to receive and insisted that plaintiff must prove item by item the work left undone when the Payne Construction Company
A second question presented by the appeal is as to the plaintiff’s right to recover the stipulated damages for delay, in addition to the cost of completing the work. That he is so entitled appears to be settled by Comey v. United Surety Co. (supra) where the very question was considered and decided favorably to the plaintiff’s contention. The plaintiff is entitled to that compensation which will leave him as well off as he would have been if the contract had been fully performed. This includes not only the cost of completion, but also any special loss by reason of delays, etc. (Kidd v. McCormick, 83 N. Y. 391; Morrell v. Irving Fire Ins. Co., 33 id. 429.)
Clarke, P. J., Dowling and Smith, JJ., concurred.
Concurrence Opinion
I concur in the reversal of the judgment on the ground that the court erred in requiring plaintiff to prove the reasonable value of each item of the work and for other errors in excluding evidence; but I do not agree with Mr. Justice Scott that the damages for a breach of a construction contract may be shown by the amount agreed to be paid by a contract let not pursuant to statute or even competitive bidding but privately, for finishing the work without other evidence tending to show the cost of completion, or that the amount agreed to be paid by the contract was the reasonable cost or value of the work. In Mayor, etc., v. Second Ave. R. R. Co. (102 N. Y. 572) it was held that the cost of completion by day labor at the current wages and by the purchase of material in the usual way was presumptive evidence of the damages in the absence of fraud or facts tending to impeach the reasonableness of the expenditures; but that decision is not, I think, authority for the proposition that the amount agreed to be paid for completion is -prima facie evidence of the damages sustained, for there is no presumption that in such case the contract for completion would not be let for more than the reasonable cost of completion. In the other cases cited by Mr. Justice Scott this point was not presented for decision. The rule is well settled that in an action by a vendor for a breach of a contract to purchase goods to be manufactured or by a contractor for a breach in refusing to permit the performance of work, the damages recoverable are not to be measured by the difference between the contract price and the cost of performance to the plaintiff under a special contract, but the difference between the contract price and the reasonable cost of performance. (Devlin v. Mayor, 63 N. Y. 8; Isaacs v. Terry & Tench Co., 125 App. Div. 532; Belle of Bourbon Co. v. Leffler, 87 id. 302; McManus v. American Woolen Co., 126 id. 68.) This, I think, is the safer rule and ordinarily there should be no difficulty in following it. The plaintiff could have asked the con
Judgment reversed and new trial ordered, with costs to appellant to abide event.