
    Richard H. Pritchard, Appellant, v. John T. Pritchard, Respondent.
    Second Department,
    October 27, 1911.
    Contract — damages — breach — agreement to furnish support — failure to reduce contract to writing.
    Where in an action by a father to recover for breach of his son’s contract to support him for life, which had been partly performed, there is no evidence of the damages which plaintiff sustained apart from the fact that, as a consideration for the contract, he furnished $4,200, the purchase price of lands bought by the son, an order setting aside a verdict of $3,500 in plaintiff’s favor on the ground that there was no evidence to support the damages found will be affirmed.
    Such verdict cannot be upheld on the theory that, as defendant had failed to put the_ .contract in writing as agreed, plaintiff can recover the consideration.
    A plaintiff is not damaged by a failure to put in -writing a contract which defendant admits he made and as to the details of which there is no dispute.
    As the complaint alleged that the breach of contract consisted in certain wrongful acts of defendant by which plaintiff was deprived, not of the "written agreement, but of the benefits thereunder, he is not entitled'to a return of his money, but only to the damages resulting from defendant’s failure fully to perform the contract."
    Appeal by the plaintiff, Bichard H. Pritchard, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 19th day of January, 1911, setting aside the verdict of a jury in favor of the plaintiff for $3,500 and granting a new trial.
    
      
      August P. Wagener, for the appellant.
    
      William B. Hurd, for the respondent.
   Woodward, J.:

The plaintiff brought an equitable action against this defendant and his wife, alleging the same state of facts pleaded in this action, and had judgment. This judgment was reversed and a new trial granted (134 App. Div. 3Q1), but the plaintiff discon- ■ tinned that action and instituted the present action at law to recover for a bréach of the agreement set forth in the complaint and admitted in the answer. The complaint alleges that the plaintiff, defendant’s father, furnished $4,200, the purchase price of certain premises in the borough of Brooklyn, upon the condition that the defendant should furnish the plaintiff a home- and suitable medical and other attendance during his natural lifetime, and to give him a proper burial, and it is alleged that the defendant promised to put this agreement in writing. It is also alleged that the plaintiff went to live with the defendant in 1906, and that he continued to reside with the defendant' until 1908, when he left the premises because of “ the continued violations by the defendant of the agreement, and of the wrongful acts on the part of the said defendant and his wife Ada Pritchard committed by the wife in the presence- of said defendant and with his connivance and by reason of the neglect, want of care, cruelty, failure and refusal to provide suitable board, clothing, care and attention, or a suitable bed or room to sleep in, or medical aid- and assistance, this plaintiff was compelled tó and did leave the home of the defendant; that the foregoing wrongful acts on the part of the defendant constituted a breach of the agreement entered 'into between plaintiff and said defendant.” The complaint then makes some allegations to the effect that the defendant agreed to put the contract in writing and to carry out said agreement, and that plaintiff relied upon this promise, and would not have-parted with his. money except for such promise, and that the defendant made such promise for the purpose of cheating and defrauding'the plaintiff out of his money, and demands judgment for the the sum of $4,200, - with interest.

The defendant admitted the contract alleged in the complaint, and there was no evidence in the case calculated to support the allegation that the defendant, by his promise to put the agreement in writing, intended to cheat and defraud the plaintiff, so that the case as it was presented at the close of the testimony was merely an action for the ..breach of the defendant’s contract to support his father during the latter’s natural lifetime. This was charged by the learned court without objection on the part of the plaintiff, and the jury brought in a verdict for $3,500. On motion of defendant this verdict was set aside, on the ground that there was no evidence in the case to support the finding of damages.

Upon this appeal the plaintiff urges that the defendant’s refusal to execute the written agreement was a breach of the contract entered into between' plaintiff and defendant, and that the plaintiff is entitled to recover the amount paid by him upon the purchase price of the premises occupied by the defendant, without any reference to the question of damages.. This is not the law of this case upon the pleadings and evidence as they now stand. One can hardly be said to be damaged by a failure to put in writing a contract which the defendant admits to have been made, and as to which there is no, dispute as to any of the details, and the allegations of the complaint are that the breach consisted in the wrongful acts of the defendant by which the plaintiff was deprived, not of the written agreement, but of the benefits of an agreement conceded to exist. Under such circumstances the plaintiff is clearly not entitled to a return of his money, but to the damages resulting from a failure to perform the contract on the part of the defendant, and there should " be evidence of the value of the contract to justify a verdict.

The order appealed from should be affirmed, with costs.

Jenks, P. J., Burr, Thomas and Rich, JJ., concurred.

Order affirmed, with costs.  