Kehoe v. Mayor

• Decision Date: 09 November 1893
• Citation: 27 A. 912,56 N.J.L. 23
• Parties: KEHOE v. MAYOR, ETC., OF BOROUGH OF RUTHERFORD.
• Court: New Jersey Supreme Court

27 A. 912

56 N.J.L. 23

KEHOE

v. MAYOR, ETC., OF BOROUGH OF RUTHERFORD.

Supreme Court of New Jersey.

Nov. 9, 1893.

(Syllabus by the Court.)

Action on a contract by John Kehoe against the mayor and common council of the borough of Rutherford. Heard on a rule to show cause why a new trial should not be granted after order of nonsuit Rule discharged.

Argued June term, 1893, before BEASLEY, C. J., and MAGIE, GARRISON, and DIXON, JJ.

Addison Ely and S. B. Ransom, for plaintiff.

Geo. B. Luce, for defendant.

DIXON, J. On October 15, 1888, the plaintiff and defendant entered into a written contract, under seal, by which the plaintiff became bound to grade, work, shape, level, smooth, and roll Montross avenue, in the borough of Rutherford, to its entire width, according to the established grade, commencing at Washington avenue, and ending at Picrpont avenue, and the defendant became bound to pay him therefor 65 cents per lineal or running foot. Soon afterwards, the plaintiff began the work, and continued until it was discovered that some of the land to be graded under the contract was private property. Then, being forbidden by the owners to enter upon this property, the plaintiff stopped the work, by direction of the borough authorities, and concluded to abandon it in the mean time, he had been paid $1,850 of the contract price. On this state of facts, he brought suit against the defendant, relying, in one count of his declaration, upon the breach of the special contract, and, in another, on the quantum meruit for the work done. At the trial in the Bergen circuit the plaintiff's evidence tended to prove that the length of the whole work required by the contract was 4,220 feet, which, at the contract rate,—65 cents per lineal foot,—made the aggregate price $2,743; that about 3,500 feet in length had been substantially graded, but still needed trimming up and finishing; that in doing this work he had excavated about 8,000 cubic yards of earth, and had put in about 1,300 cubic yards of filling; that to complete the job, about 14,000 cubic yards of filling were still necessary, besides the trimming up and finishing of the entire length of the street. His evidence further indicated that the fair cost of the work done was:

8,000

cubic yards of excavation, at 35 cents

$2,800

900

cubic yards of filling, at 21 cts

189

400

cubic yards of filling, at 41 cts

164

Making a total of

$3,153

—and that the fair cost of the work remaining to be done, in completely performing the cod tract, was:

14,000

cubic yards of filling, at 12 cents

$1,680

4,220

feet of finishing, at 5 cents

211

Making a total of

$1,891

—thus showing the fair cost of the whole work required by the contract to be $5,044. These calculations are, in every instance, based upon the testimony most favorable to the plaintiff; allowing him the highest estimates for what he had done, and reckoning the residue at the lowest. If his own estimates, or those of any single witness, were taken throughout, the result would be more to his disadvantage.

Upon the evidence thus presented, the plaintiff was nonsuited, and a rule allowed that the defendant show cause why a new trial should not be awarded. The nonsuit was ordered upon the theory that the plaintiff could recover, for the work done, only such a proportion of the contract price as the fair cost of that work bore to the fair cost of the whole work required, and, in respect of the work not done, only such profit, if any, as he might have made by doing it for the unpaid balance of the contract price. Under this theory, his recovery for the work done was to be limited to such a proportion of $2,743 as 3,153 bears to 5,044, viz. $1,715; and as to the work not done, since it would cost him $1,891 to do it, while the unpaid balance of the price was only $893, no profit could be earned by doing it. Hence, it was considered that he had been overpaid to the extent of the difference between $1,850 and $1,715. But the contention of the plaintiff was and is that, as he was prevented from completing the contract without fault on his part, he is entitled to the reasonable value of the work done, without reference to the contract price; and if this be the correct rule, undoubtedly the case should have gone to the jury. But, at the very threshold, we are confronted with this possible result of the application of the rule contended for: That the plaintiff might recover $3,153 for doing about three-fifths of the work, while, if he had done it all, he could have recovered only $2,743. The absurdity of the result condemns the application of such a rule. Circumstances may exist in which, for work done under a special contract, the plaintiff will recover its fair value. Thus, if the contract be within the prohibition of the statute of frauds, (McElroy v. Ludlum, 32...