Upstone v. Weir

Department No. 2, Sharpstein, J.: This is an action for the recovery of a balance alleged to be due from the defendant to the plaintiff upon a written contract entered into between them, by which the plaintiff agreed to furnish, and the defendant to receive a certain quantity of ironwork at a stipulated price. In consequence of the defendant’s refusal to receive the quantity specified in the contract, the plaintiff furnished less than that quantity, but all that the defendant required or would receive. Upon this state of facts the plaintiff contends that he is entitled to recover the contract price for the entire quantity specified in the contract. The action was tried before a jury, and the Court admitted evidence, subject to the objection of the plaintiff that it was irrelevant, which tended to prove that the quantity of iron-work actually furnished was worth §307 less than the quantity specified in the contract. But afterward, on motion of plaintiff, that evidence was stricken out by order of the Court, to which the defendant excepted. The following extract from the instruction of the Court to the jury is sufficient to illustrate the theory upon which the Court ordered that evidence stricken out:

“ The facts are not disputed. The question is simply a question of law. It is admitted on both sides that the plaintiff did not furnish 2,176 feet of bond iron, and, therefore, it is claimed he is not entitled to recover the whole amount which was agreed to be paid. But the Court instructs you that, if he furnished all that was demanded of him, enough to complete the building, and is ready to furnish the balance, or was ready to furnish all that was required of him under these [126]specifications, he is entitled to a verdict. It is not pretended that he was called upon to furnish any more. He furnished it as he was called upon to furnish it, until they had enough. That is my understanding of the evidence. Under this state of facts’he is entitled to the full amount agreed upon to be paid.”

Does that instruction lay down the true rule as to the measure of damages in this case ? The rule, as we understand it to be, is this : The plaintiff, having sued upon the contract, is entitled to recover, for the iron-work furnished, such a proportion of the whole contract price as the quantity which he furnished bears to the whole quantity contracted for; and, in addition to that, the profit which he would have made, if he had been allowed to complete his contract, together with the damages he incurred in providing means for furnishing the residue of the iron-work called for by the contract, but not delivered, because of the defendant’s breach.