Young v. Shetucket Coal & Wood Co.

• Decision Date: 23 December 1921
• Citation: 97 Conn. 92,115 A. 672
• Parties: YOUNG v. SHETUCKET COAL & WOOD CO.
• Court: Connecticut Supreme Court

115 A. 672

97 Conn. 92

YOUNG v. SHETUCKET COAL & WOOD CO.

Supreme Court of Errors of Connecticut.

December 23, 1921

Appeal from Superior Court, New London County; George E. Hinman Judge.

Action by Lewis M. Young against the Shetucket Coal & Wood Company on a building contract. From a judgment for plaintiff in an insufficient amount, he appeals. No error.

Jeremiah J. Desmond and Charles V. James, both of Norwich, for appellant.

Edmund W. Perkins, of Norwich, for appellee.

WHEELER, C.J.

This action was brought under the common counts, but in fact tried upon the issue raised by the defendant's answer and plaintiff's amended reply thereto.

The defense alleges that the parties had entered into an agreement to erect a coal pocket, and that there was due under the contract $3,350, which defendant had duly tendered to plaintiff but he had refused to receive the same in payment, and defendant has ever since and still is ready and willing to pay plaintiff this sum. The reply admits the execution of the contract and alleges that the plaintiff began work thereunder, but, before the work was or could be completed, the plaintiff, without fault on his part, was prevented by the defendant from completing the contract, and thereafter plaintiff erected and completed the coal pocket furnishing the labor and materials specified in his bill of particulars.

The case was tried upon the issue of whether or not the defendant did prevent the plaintiff from completing the contract and thus by its act rescinded the contract. Under the contract the plaintiff had agreed to erect a coal pocket of a capacity of 1,500 tons in accordance with certain plans and specifications, and further had agreed that the whole of the work and materials including the machinery and equipment should be subject to the inspection, supervision and approval of a civil engineer, of the defendant's selection. It appears from the finding that defendant's engineer notified plaintiff at different times that he would not approve the work, unless the plans were so changed as to give a capacity of 1,500 tons of coal, and the structure strengthened as to the concrete and steel used, and in order to make the hopper self-emptying, changes made in the pit and walls.

The plaintiff might have refused to meet the engineer's demands, and, disregarding them, have substantially completed his contract, and unless his deviations, if any, from the contract were willful, he might have recovered the contract price less such deductions as were reasonable for such deviations made. Fagerholm v. Nielson, 93 Conn. 380, 106 A. 333. If the facts, under the pleadings, justified the conclusion that the defendant, through its agent, the engineer, prevented the plaintiff from proceeding with the contract, he might have ceased work and sued, quantum meruit, for the work done, or for damages for the breach of the contract. Valente v. Weinberg, 80 Conn. 134, 67 A. 369, 13 L.R.A. (N. S.) 448.

The rule of damages for such breach of contract is that adopted by Judge Dixon in Kehoe v. Rutherford, 56 N.J.Law, 23, 27 A. 912:

" When the plaintiff has been prevented from completing his work by the fault of the owner, the legal measure of damages is generally for the work done such a proportion of the entire price as the fair cost of that work bears to the fair cost of the whole work, and in respect to the work not done, such profits as he would have realized by doing it." Id.; Wilson v. Borden, 68 N.J.Law, 627, 54 A. 815; Page on

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