Wall Estate Co. v. Chamberlin Metal Weather Strip Co.

KOFORD, P. J.

Plaintiff commenced this action for $1,565.42 damages for breach of contract. The court awarded it only $683.32. Plaintiff appeals upon the judgment-roll alone, claiming that the findings are such that the full amount of damages should be awarded by the judgment.

The findings show the following facts: Defendant agreed to waterproof two walls of plaintiff’s apartment house for $230 and to calk between the window frames and the masonry for $155, and promised that the work would be done in such a proper and workmanlike manner as to prevent water from leaking through the walls. Defendant finished the work and received the agreed payment, but did not perform the work well, and, as a result, water leaked through the walls and damaged the interior decoration of the apartment house. The court found all of the allegations of the complaint to be true except paragraph IX. That paragraph read: “That by reason of the foregoing facts plaintiff has sustained damages in the sum of $1,565.42,” The court

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found with respect to this allegation that plaintiff sustained damages in the sum of $683.32 only.

Paragraph VII of the complaint claimed the items of $125 and $148.32 for damages to the interior of the building and paragraph VIII of the complaint declared upon the balance of the damages claimed by the plaintiff. It is assumed by plaintiff and appellant that the items in paragraph VII were allowed, but that, owing to an error of the court in determining the proper measure of damages, only a part of the claim set forth in paragraph VIII was allowed. That paragraph reads as follows: “That thereafter plaintiff was compelled to employ other mechanics to perform the work which the said defendant agreed to perform according to its contract hereinbefore referred to, and that said mechanics were obliged to remove the defective material placed on said walls by said defendant. That plaintiff paid to said mechanics the sum of $1,292.10 for removing the said inferior material used by defendant, and for performing and completing in a workmanlike manner the said work which the defendant agreed to do and perform by its said contract hereinbefore referred

to.”

It will be seen that while this paragraph alleges that plaintiff was