38 N.Y.S. 482 | N.Y. App. Div. | 1896
This action is to recover for dredging and excavation done by the plaintiff for the defendant. The dredging was done in the excavation of a canal and basin on defendant’s meadow. The employment of the plaintiff and the amount of work done by him are not in dispute. Both parties assert that there was an oral contract between them for the excavation of the whole canal and basin. They agree on the price to be paid, which was twelve and a half cents a yard. The vital dispute between them is as to the depth to which the canal and basin were to be excavated, the plaintiff insisting that he was to excavate only to where hard bottom was found, and the. defendant contending that the plaintiff was to excavate to a uniform depth of' nine feet, regardless of the character of the material to be excavated. During the progress of the work the defendant made certain payments or advances to the plaintiff on account of the work. This action is to recover the balance due.
On the trial it was conceded that the plaintiff’s agreement was an entire one ; that is, to do all the excavation requisite for the canal and the basin. The question, therefore, litigated was what were the terms of the contract between the parties, and whether the plaintiff had substantially performed it. The cause was submitted to the. jury, under a charge by the- court, that the plaintiff must satisfy.
The exceptions taken by the defendant to the rulings of the court, admitting or excluding evidence, are without merit and require no discussion. There were, however, two requests to charge, which the court refused. These rulings require examination.
The court was asked to charge that if the plaintiff had failed to substantially perform his contract, the defendant was entitled to recover all amounts lie had paid the plaintiff on account of the contract. - "We can find no authority for this .proposition and believe it to be essentially unsound. If a party fails to perform a contract, the other party is entitled to recover damages for its breach. The ordinary rule of damages, in a case of a breach of a contract, is the expense or cost of performance, with, of course, in certain cases, the damages occasioned by delay, or other special damage. But where one party has paid in advance either the whole or ¡Dart of the consideration on his part, liis right to recover back such payments, on default by the other party in the performance of the contract, does not proceed on the ground that such payment is the measure of damages for the breach, but on the theory of a rescission of the con-tract by the party not in default or because the consideration for the payments has failed. “ Generally, no contract- can be rescinded by" one of the parties-unless both can be restored to the condition in which-they were before the contract was made. If, therefore, one of the parties has derived an advantage from a partial performance he cannot hold this and consider the contract as rescinded because of-the non-performance.of the residue; but must * * * seek his remedy in damages.” (2 Pars, on "Gout. [5th ed.] 619.) -So also, if the party not in default proceeds on the theory that the considera
. The seventh request was: “ That if the jury shall find from the evidence that plaintiff did not fairly and substantially perform the contract in all its parts, defendant is further entitled to recover from plaintiff such damages as the jury shall find from the evidence have been sustained by defendant by reason of such non-performance by plaintiff.” As an abstract proposition of law this request was undoubtedly correct, and the refusal to charge it would
There is a further answer to the defendant’s claim of alleged error in. respect to these refusals to charge. The case was submitted to the jury under the instruction that unless the plaintiff had substantially performed his contract he-could recover nothing. As the jury rendered a verdict for the plaintiff, it was necessarily determined that the plaintiff had performed his contract and, therefore, any instructions or refusals to instruct, in case the jury found that the plaintiff had not performed his contract, became immaterial.
The judgment and order denying motion for anew trial appealed from should be affirmed, with costs.
All concurred, except Pratt, J.,. dissenting.
Judgment and order affirmed, with costs.