11 Misc. 406 | New York Court of Common Pleas | 1895
An action to recover upon a quantum meruit for the work actually done, and the materials actually furnished, will lie against one who has waived or prevented full performance of an express contract for services by the other of the contracting parties. Clark v. Mayor, 4 N. Y. 388; Jones v. Judd, Id. 411; Niblo v. Binsse, 3 Abb. Dec. 375; Whelan v. Clock Co,, 97 N. Y. 293. In such an action, proof of the express contract is relevant and material as bearing on the measure of damages. Fells v. Vestvali, *41 N. Y. 152; Ludlow v. Dole, 62 N. Y. 617. The proof, therefore, does not necessarily change the cause of action. The plaintiff sued, as the assignee ■of the New York Bank-Note Company, to recover the fair and reasonable value of services rendered and materials furnished at the instance and request of the defendant in and about thé engraving and supply of certain bonds. Besides a general denial, the defense was that, pursuant to the terms of the contract under which it was to be done, the plaintiff’s assignor was required to secure the approval of the work by a committee of the New York Stock Exchange, and that in that respect the plaintiff’s assignor had failed. Upon the trial it was conceded that the plaintiff’s assignor and the defendant had entered into a contract whereby the former was “to engrave on steel, and print, bind, and number, one thousand bonds, for the sum of one thousand and fifty dollars,” and to “engrave a stock-certificate plate on steel,” and “print, bind, and number books of five thousand certificates therefrom, for the sum of twenty-five dollars each.” No question arose with regard to the plate for the stock certificates, and the supply of such certificates, these having been delivered to and accepted and paid for by the defendant.
For the plaintiff, it appeared that his assignor had caused th® plate for the bonds to be engraved, the fair and reasonable value of