Sinnett v. Dial Const. Co., 37882

• Decision Date: 02 July 1971
• Docket Number: No. 37882,37882
• Citation: 187 Neb. 190,188 N.W.2d 681
• Parties: John W. SINNETT and Ronald E. Sinnett, Partners d/b/a Sinnett Brothers Co., Appellants, v. DIAL CONSTRUCTION COMPANY, a Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 681

188 N.W.2d 681

187 Neb. 190

John W. SINNETT and Ronald E. Sinnett, Partners d/b/a Sinnett Brothers Co., Appellants, v. DIAL CONSTRUCTION COMPANY, a Corporation, Appellee.

No. 37882.

Supreme Court of Nebraska.

July 2, 1971.

Syllabus by the Court

1. The measure of damages for a breach of contract for specific work at an agreed price is the difference between the stipulated price and the cost of completing the work.

2. Where the evidence is insufficient to sustain a verdict in favor of the plaintiff, it is the duty of the trial court to dismiss the action on the motion of the defendant.

Charles Ledwith, Harry Holloway, III, Omaha, for appellants.

Monsky, Grodinsky, Cohen, Garfinkle & Zweiback, Mark L. Laughlin, Omaha, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

BOSLAUGH, Justice.

This is an action for breach of contract brought by Sinnett Brothers Co., a partnership, against Dial Construction Company. The trial court dismissed the action at the close of the plaintiff's evidence. The plaintiff appeals.

The evidence shows that on October 5, 1968, the plaintiff and the defendant entered into a contract for the cleaning of apartments that had been constructed by the defendant in Omaha, Nebraska. A written memorandum of the agreement, signed by the parties, provided that it was an 'Agreement for complete clean up (ready to move in status) of the new 1 and 2 bedroom apartments at Wentworth and Royal Terrace.' The agreement then provided that the plaintiff was to furnish labor only, described the work to be done, and prescribed the price for the labor.

The plaintiff cleaned 25 apartment units in the Wentworth complex and was paid in full for its work. Apparently, some controversy developed over whether the work was satisfactory. On February 18, 1969, John W. Sinnett, one of the partners, talked with Lewis E. Roberts, one of the defendant's officers, and inquired as to when the additional new apartments would be ready for cleaning. Roberts told Sinnett that the plaintiff would not be allowed to clean the new apartments. The plaintiff then commenced this action to recover the amount that would be due for cleaning an additional 165 apartment units.

The controversy is whether the parties contracted with respect to all apartments that might be constructed at the Wentworth and Royal Terrace sites or only as to apartments that had been completed but not occupied on the date the contract was made. The question cannot be determined by reference to the memorandum agreement and ...