38 Misc. 136 | N.Y. App. Term. | 1902
The action is for work, labor and materials furnished by plaintiff to defendant. The answer is á general denial and breach of contract. The case was tried before a justice of the Municipal Oourt, without a jury, and judgment given for
The plaintiff claims that his contract was wrongfully broken and cancelled, and sues the defendant to recover the actual value of the services, waiving the contract. It is the contention of plaintiff that the cancellation of the contract was not justified; that the plaintiff is not limited to an action for the damages sustained by him by reason of the breach of contract, but that he can sue on a quantum meruit for the work, labor and services.; and that it was not error to permit plaintiff to show a subsequent oral agreement, under which plaintiff put on extra men and defendant agreed to advance sufficient funds to meet the additional expense, in excess of the $150, called for by the contract, per week; and finally that plaintiff showed the damages to he $422.20. There is evidence, which seems to be undisputed, that defendant did advance weekly payments in excess of the $150, called for by the contract, which tends strongly to corroborate plaintiff’s claim of a subsequent oral agreement. There is also sufficient evidence that the $178 were not enough to pay the men in full, as plaintiff applied part of it to the payment of other bills. The strike against plaintiff lasted for one day only. We incline to the opinion that defendant was not justified in cancelling the contract, under the proofs presented. As the contract was terminated by the employer, against the will of the contractor, the latter was not con
Upon the whole case we think the judgment should be affirmed, with costs.
Present: Freedman, P. J., Truax and Gildersleeve, JJ.
Judgment affirmed, with costs.