Norton v. Shields

• Decision Date: 21 September 1904
• Citation: 132 F. 873
• Parties: NORTON v. SHIELDS.
• Court: U.S. District Court — Southern District of New York

132 F. 873

NORTON v. SHIELDS.

United States Circuit Court, S.D. New York.

September 21, 1904

Donald McLean, for plaintiff.

L. L Kellogg, for defendant.

HOLT District Judge.

This is a motion to set aside a verdict and for a new trial. The action was brought on an alleged contract by which the plaintiff agreed to lay certain pipes in the Boulevard, in New York City, between 125th street and 104th street.

It is claimed that the verdict was excessive. This point is based upon the amount allowed by the jury under the fourth cause of action, which was a claim for damages, consisting of the loss of profits caused by the defendant's refusal to permit the plaintiff to perform the work under the alleged contract between 114th street and 104th street. The plaintiff claimed and gave evidence to support the claim, that the contract price for the work was $6,695.50; that the cost of doing the work would have been $2,697.03; and that the profit therefore, would have been the difference, or $3,998.47; and the jury rendered a verdict upon the fourth cause of action for that amount. The defendant's counsel claims that this verdict was excessive, and argues that it is incredible that any contract should have been made between these parties which would have given Norton a profit of 148 per cent. If a contract was made between the parties, the fact that the profits under it were large is immaterial. Whether the profits were large or small, both parties were bound by the contract. The only materiality of the fact that the profits were large is its bearing on the credibility of the plaintiff's testimony that the contract was made. But there is substantially no contradiction in the testimony as to those provisions of the contract which fixed the rate of profit. There was admittedly at the outset a specific contract evidenced by Norton's letter to Shields of June 23, 1900, proposing upon certain terms to do the work from 125th street to 104th street, and the letter from Shields to Norton, dated July 18, 1900, accepting the proposition. Under this contract Norton did the work from 125th street to 119th street. A pause in the work of some five or six weeks then occurred, owing to the fact that pipe was not furnished along the trench to be laid. In October, additional pipe being ready, Shields began the work of continuing the laying of the pipe with a gang of his own men, claiming that the contract was at an end. Norton claimed that it was not. After some discussion between them, it was agreed that Norton should go on with the work, reducing his charge from $2.10 a lineal foot to $2. Norton claims that the agreement was that he was to complete the work to 104th street, and that the original agreement was simply modified by reducing the rate per lineal foot, and maintained in all other respects. Shields claims than an entirely new agreement was made to do the work to 114th street; and therefore that Norton was not entitled to recover at all for any loss of profits between 114th street and 104th street. But Shields himself admitted that the only reduction in the price to be paid for the work was from $2.10 to $2 per lineal foot. If, therefore, the new contract, or the modification of the original contract, did apply to the work to be done between 114th street and 104th street, there is nothing incredible in the idea that the parties entered into a contract giving such large profits, because the...