United States v. Brotherton
| Decision Date | 17 July 1952 |
| Citation | 106 F. Supp. 353 |
| Parties | UNITED STATES for use of WANDER et al. v. BROTHERTON et al. |
| Court | U.S. District Court — Southern District of New York |
Max E. Greenberg, New York City, Robert Goldstein and Max E. Greenberg, New York City, of counsel, for plaintiffs.
Winthrop, Stimson, Putnam & Roberts, New York City, Merrell E. Clark, Jr., New York City, of counsel, for defendants.
This is a motion for partial summary judgment in an action commenced under the Miller Act1 by the plaintiffs, subcontractors, against the prime contractors and their surety to recover the value of work, labor and services performed by the plaintiffs.
The subcontractors and the prime contractors entered into an agreement under which the former agreed to furnish labor and materials for metal work in the construction of a government hospital. The contract price was $137,926 of which $119,792.16 has been paid. But the plaintiffs do not sue upon the contract to recover the unpaid balance of $18,133.84. Instead they seek recovery of $64,252.32 on a quantum meruit claim for the labor and materials furnished on the job. The total fair and reasonable value of the work is alleged to be $184,044.48 and plaintiffs have credited the defendants with the amounts paid by them under the contract leaving the balance sued for herein. The substance of the plaintiffs' theory is that they incurred increased and additional expenses for wages and materials not contemplated by the contract solely by reason of unwarranted delays on the part of the defendants; that such delays were so protracted as to cause plaintiffs to deem the contract abandoned by the defendants. The plaintiffs in so proceeding rely upon "an accepted principle of contract law, often applied in the case of construction contracts, that the promisee upon breach has the option to forego any suit on the contract and claim only the reasonable value of his performance."2
Plaintiffs by their present motion seek partial summary judgment for $20,688.32 comprised of the following: $18,133.84 the balance under the contract; and two items of extra work, one for $954.48 and another for $1,600. They contend they are entitled to such relief since no dispute exists with respect thereto.
With respect to the first item it is true that the defendants conceded upon their examination before trial that the unpaid balance is due plaintiffs under the contract; but this concession was not without its restrictions. It was conditioned upon execution and delivery of certain releases by plaintiffs to defendants and others which defendants say they are entitled to under clauses 5H and 5K of the contract. Defendants contend that since plaintiffs have refused to comply therewith they are not entitled to the balance. The meaning of these clauses is in dispute.
Plaintiffs under the theory of their claim must establish (1) that the defendants breached or abandoned the contract and (2) the reasonable value of the labor and materials. Assuming arguendo that plaintiffs succeed on the first of these elements, the determination of which involves disputed issues of fact, thereby becoming entitled to...
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...Co., 285 F.2d 863 (C.A.4, 1960), cert. denied, 366 U.S. 919, 81 S.Ct. 1095, 6 L.Ed.2d 241 (1961); United States for use of Wander v. Brotherton, 106 F.Supp. 353, 354-355 (S.D.N.Y.1952). But if the defendant is able to show that the costs incurred by the contractor were excessive (as a resul......
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...to Con Edison's promise may be made for measuring damages under both contract by estoppel and quasi-contract. See United States v. Brotherton, 106 F.Supp. 353 (S.D.N.Y. 1952); Williston, supra, §§ 1458, 1459. Accordingly, the Court concludes that the appropriate measure of damages here is p......
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