Jones v. Judd , 4 N.Y. 412 ( 1850 )

Gardiner, J.

The plaintiffs were stopped in the prosecution of the work, in fulfilment of their contract, by the authority of the state officers. Before this injunction was removed, the law of March 29, 1842, for preserving the credit of the state, was passed, which put an end to the original contract, and the agreement between the plaintiffs and defendant which grew out of it. (3 Mass. Rep. 331; Doughty v. Neal, 1 Saund. R. 216, note b, 5th ed.; 10 John. 28.)

As the plaintiffs were prevented, by the authority of the state, from completing their contract, they are entitled to recover for the work performed, at the contract price. The ten per cent was a part of the price stipulated. It was reserved to secure the fulfilment of the contract, and to he paid upon a final estimate. The performance of the required condition became impossible by the act of the law, and of course the plaintiffs were entitled to recover without showing a compliance with the agreement in this particular. (Comyn on Cont. 50; 10 John. 36.)

Upon the question of damages; I think the offered evidence was properly rejected. If the contract had been performed by the plaintiff, he might have recovered upon the special agreement, [414] or upon the common counts, and in either case he would be entitled to the price fixed by the agreement. (Phil. Ev. 109, 2d ed. Dubois v. Del. & H. Canal Co. 4 Wend. 280, and cases cited.) If the performance had been arrested by the act or omission of the defendants, the plaintiff would have had his election, to treat the contract as rescinded, and recover on a quantum meruit, the value of his labor, or he might sue upon the agreement, and recover for the work completed according to the contract, and for the loss in profits, or otherwise, which he had sustained by the interruption. (Linningdale v. Livingston, 10 John. 36; 9 Barn. & Cress. 145; Masterton v. The Mayor of Brooklyn, 7 Hill, 69, 75.) In this case the performance was forbidden by the state. Neither party was in default. All the work, for which a recovery is sought, was done under the contract, which fixed a precise sum to be paid for each yard of earth removed, without regard to the difficulty or expense of the excavation. If the plaintiffs had commenced with the more expensive part of the work, they could not, under the circumstances, have claimed to have been allowed for the profits to arise from that portion which they were prevented from completing. Such an allowance is predicated upon a breach of the contract by the defendant. (7 Hill, 71, 73.) The defendants, in the language of Judge Beardsley, “ are not by their wrongful act to deprive the plaintiff of the advantage secured by the contract.” Here, there was no breach of the agreement by either party. The plaintiffs could not recover profits, and the defendant can not, consequently, recoup them in this action. (Blanchard v. Ely, 21 Wend. 346.)

Again; the plaintiffs assumed the risk of all accidents which might enhance the expense of the work, while the contract was subsisting. (Boyle v. Canal Co. 22 Pick. 384; Sherman v. Mayor of New- York, 1 Comst. 321;) and is entitled, consequently, to the advantages, if any, resulting from them. The suspension of the work, by state authority, was an accident unexpected by either party. It was one which, under the offer, we are bound to assume, was of benefit to the plaintiffs. But the defendant can not require an abatement from the agreed price, for [415] what has been done, unless he could demand it in case a fiood had partially excavated or embanked the section of the canal to be completed by the plaintiffs. The judgment must be affirmed.

Jewett, Hublbut and Pbatt, Js. concurred.

Bbonson, Oh. J., Rugóles, Haeeis and Taylob, Js. were for reversal, on the ground that the evidence offered upon the question of damages was improperly excluded.

Judgment affirmed.