
    No. 361
    CITIZENS CONST. CO. v. KOSKOVITZ et
    No. 19650.
    Supreme Court
    On motion to certify.
    Dock. March 1, 1926;
    4 Abs. 160.
    355. DAMAGES — What should the charge to the jury be (225) concerning the damages sustained in an action for breach of contract (297) for failure to construct a house according to the specifications of the contract?
   Joseph and Mary Koskovitz brought this action originally in the Cuyahoga Commbn Pleas against the Citizens Building & Construction Co. for its alleged failure to build a house according to the specifications of the contract between the parties.

The judgment rendered on the verdict by the Common Pleas in favor of Koskovitz was affirmed by the Appeals.

The Court charged the jury in part as follows:

Plaintiffs say they have performed all conditions of said contract on their part to be performed; that by reason of the defendant’s failure to furnish material for the construction of house according to contract and plans and specifications, plaintiffs have been damaged in the sum of $3000 and they ask a verdict at your hands in such sum.

Attorneys — G. C. Hafley, for Company; White, Cannon & Spieth, for Koskovitz; all of Cleveland.

The measure of damages, in case you find for the plaintiffs, is the difference between the value of the house as it was built, and the house as it should have been had it been built according to the contract.

If you find that he has only substantially complied with it, that there are only slight departures in the matter of the construction of this house, then you will allow only such moderate sum as damages as would compensate the plaintiffs for the slight changes in the matter of the performance of the contract.

The Construction Company in the Supreme Court, contends:

1. The Court did not properly define the issue raised by the pleadings and the evidence;

2. The Court erred in its charge to the jury with reference to the measure of damages;

3. The Court’s charge to the jury with reference to the measure of damages was inconsistent and misleading.  