Thompson v. Gaffey

• Decision Date: 22 September 1897
• Docket Number: 7393
• Parties: GEORGE THOMPSON v. HERBERT H. GAFFEY
• Court: Nebraska Supreme Court

72 N.W. 314

52 Neb. 317

GEORGE THOMPSON v. HERBERT H. GAFFEY

No. 7393

Supreme Court of Nebraska

September 22, 1897

ERROR from the district court of Lancaster county. Tried below before TIBBETS, J. Reversed.

REVERSED AND REMANDED.

Lamb Adams & Scott, for plaintiff in error.

McNerney & Altschuler, contra.

RAGAN C. HARRISON, J., not sitting.

OPINION

RAGAN, C.

Herbert H. Gaffey brought this suit in the district court of Lancaster county against George Thompson and alleged in his petition that he had performed certain labor and furnished certain plumbing material to Thompson at his special instance and request; that the fair and reasonable value of such labor and material was $ 115, for which sum he prayed judgment. Thompson, after interposing a general denial to this petition, answered that the labor and material for which Gaffey sued were furnished in pursuance of an express contract between the parties in and by which Gaffey agreed to furnish the material and do the plumbing work for $ 160; that he partly performed the contract, but that the material furnished by him was of an inferior quality and the labor performed unskillfully done, contrary to the terms of the contract; that in doing what he did do Gaffey perpetrated injuries to his, Thompson's, house to the extent of $ 200 and that before the work was completed Thompson abandoned the job and refused to complete it, and Thompson prayed judgment on his counter-claim for $ 200 damages. Gaffey in his reply admitted that the labor and material had been furnished in pursuance of the contract pleaded by Thompson, alleged that he abandoned the work undertaken before its completion because he was prevented from completing the work by the wrongful acts of Thompson, and denied the other allegations in the answer. Gaffey had a verdict and judgment and Thompson prosecutes here a petition in error.

1. The finding of the jury in favor of Gaffey includes a finding that he was wrongfully prevented by Thompson from completing the contract. On the trial the district court instructed the jury as follows: "If you find from the evidence that the plaintiff performed his part of the contract * * * and stood ready to further perform his part of the contract and * * * was prevented from further prosecution of the work by the acts of the defendant, then the plaintiff will be entitled to recover from the defendant the fair and reasonable value of the work and material already furnished by him regardless of the contract." Thompson insists that the giving of this instruction was error, as it prescribed an improper rule for the measure of Gaffey's damages. It is insisted by the plaintiff in error that, since it stands admitted in the pleadings and established beyond controversy on the trial, that the labor and material sued for by Gaffey were furnished by him in pursuance of an express contract with Thompson, if Gaffey was prevented from completing his contract by the wrongful acts of Thompson, then Gaffey's measure of damages is such proportion of the entire contract price as the part performed is of the entire contract plus the profits, if any, which Gaffey would have realized by completing the contract according to its terms. If Gaffey had relied upon the contract between him and Thompson, and based his action on that contract, then doubtless the rule contended for by the plaintiff in error for the measure of damages would have been the correct one. (Hale v....