Jewett v. Wilmot

• Decision Date: 03 June 1897
• Docket Number: 7169
• Parties: GEORGE H. JEWETT v. CLAYTON P. WILMOT
• Court: Nebraska Supreme Court

71 N.W. 775

51 Neb. 700

GEORGE H. JEWETT v. CLAYTON P. WILMOT

No. 7169

Supreme Court of Nebraska

June 3, 1897

ERROR from the district court of Thurston county. Tried below before NORRIS, J. Reversed.

REVERSED.

R. G Strong, W. S. Cook, and J. E. Frick, for plaintiff in error.

Guy T Graves and Jay & Beck, contra.

OPINION

POST C. J.

This was an action in the district court for Thurston county for the breach of a certain contract, which is thus described in the petition below: "That on or about the 3d day of August, 1893, plaintiff entered into a verbal contract with defendant to do all of the mason work necessary to complete the plastering of three certain brick buildings built by said defendant during the year 1893 at the Winnebago Agency, in Thurston county, and known as the school building, school dormitory, and laundry; that said work was to be three-coat work, and done in a good workmanlike manner, for which defendant agreed to pay plaintiff the sum of eight cents per square yard." It is therein further alleged that the defendant subsequently employed other parties to do the work described, thus violating his agreement with the plaintiff to the damage of the latter, for which he prays judgment in the sum of $ 400. The answer is a general denial. There was a trial of the issues thus joined, resulting in a verdict for the plaintiff below in the sum of $ 200. Upon the hearing of a motion for a new trial the plaintiff, in accordance with the order of the court, remitted the sum of $ 150, whereupon said motion was overruled and judgment entered against the defendant in the sum of $ 50, from which the latter prosecutes error to this court.

The ground upon which the recovery was permitted by the district court is not apparent from an inspection of the record. The jury were correctly advised that the measure of damage for the alleged breach of contract would be the difference, if any, in favor of the plaintiff, between the stipulated price and the cost of completing the work in question. The plaintiff was, according to the allegations of his petition required to complete the plastering of the several buildings at the rate of eight cents per yard. Two witnesses were introduced by him, one of whom testified that the work described in the petition was worth ten cents, and the other that it was worth twelve and one-half cents per yard. The only other evidence touching the cost of the work was the testimony of the plaintiff himself, who figured a small probable profit on the venture upon the assumption that he would personally have done the work. To reach that result he multiplied the number of yards of plastering by the price per yard, and from the product given deducted his probable expense for board and lodging and wages of an assistant, etc., but without making any deduction on account of his own time and labor. It should, in this connection, be observed that the reasons which induced the district court to...