
    Richard Deeves, Resp’t, v. The Richardson & Boynton Co., App'lt.
    
      (New York Superior Court, General Term,
    
    
      Filed May 4, 1891.)
    
    Contract—Breach of—Damages.
    Defendants wrote to plaintiff that they would furnish and set sixty-three hot air pipes in the wall of a dispensary which plaintiff had contracted to erect for $248. Plaintiff accepted it in writing. Defendants then endeavored to withdraw the estimate on the ground of a mistake in their calculation; and plaintiff refusing to allow them to do so, refused to fulfill their contract. Defendant procured another firm to do the work at an estimate of sixty-three pipes for $614, forty-one pipes for $402, revised plans reducing the number of pipes to forty-one, which were set up at a cost to plaintiff of $402. Held, that plaintiff was damaged only in the difference between $402 and the amount of defendant’s bid of $248, as nothing was lost by defendant’s breach except that amount, and a due compensation to be assessed by the jury for his trouble and work in obtaining a new bid.
    Appeal by defendant from judgment entered on verdict for plaintiff, and from order denying motion for new trial.
    
      Arnold & Green, for app’lt; David Thornton, for resp’t.
   Per Curiam.

—The plaintiff was a mason builder. He was about to make a bid for the building of the Eastern Dispensary. Before» putting in that bid he procured from the defendants a proposal as to furnishing sixty-one lines of hot air pipes to the building and setting them in its walls. The defendants wrote to the plaintiff that they would furnish and set hot air pipes in the wall of the dispensary for $208, which was afterwards competently changed to $248.

Upon receiving this proposal, the plaintiff accepted it in writing.

The defendants, for the purpose of making the proposal, had been referred, in order to know the quantity of work that was to be done, to plans and specifications made by architects for the building. When the proposal was made it was understood that sixty-three lines of pipe were to be furnished.

After the acceptance by the plaintiff, the defendants endeavored to withdraw the estimate, on the ground that there had been a mistake on their part in calculating the number of feet of pipe that was to be furnished.

There can be no doubt that, upon the plaintiff accepting the proposal, there was a contract obligatory on both parties. The attempt to withdraw the estimate by defendant, after the acceptance, was ineffectual. If there was a question on this point, the defendant did not ask that it be decided by the jury.

The defendants made a defense that the contract was to be set aside because of a mistake, made by them, in framing their proposal. The mistake did not refer to the form or words of the proposal but in calculating, as asserted, the number of feet of pipe. Several things might be said of this. It may be sufficient to say that the so-called mistake was the result of inexcusable negligence which the plaintiff did not induce or participate in. Such a mistake is not the ground of equitable interference.

The defendant’s withdrawing the estimate, and not performing, as he did not, the question remains as to the damages the plaintiff was entitled to recover.

The contract was special in its character and one of purchase and sale. This was known to both parties. The pipe was not to become the property of the plaintiff, and it would become, when the contract was performed, the property of the owners of the dispensary.

The benefit, as disclosed by plaintiff’s evidence, would be such as would accrue to the plaintiff from his making his bid in part upon defendants’ estimate, and the bid being accepted by the dispensary, his being able to perform that part of the work at the expense of paying- the sum fixed by defendants’ contract

The plaintiff testified that upon the defendants’ estimate in fact, he made his bid for the contract, which was afterwards awarded to him.

The contract provided that the owner should be at liberty to make any alteration, addition or omission in, to or from the contract, and the same should in no way avoid the contract, but would be added to or deducted from the contract by a fair and reasonable valuation.

The plaintiff recognized that what was furnished was to be furnished according to the architect’s plan and specification. In accepting defendants’ estimate, he wrote: “ I hereby accept your estimate, etc., all to be done according to plans and specifications as made by Messrs. Rose & Stone, architects, and to their satisfaction.” ,

From the nature of the benefit the plaintiff was to receive from defendants’ contract, it is manifest that if the work were done for a less sum than he was to pay the defendants, there would be no loss or damage, or if the work cost a greater sum, he would be compensated by receiving the excess of it beyond that to be paid to defendants.

He was obliged to pay a greater sum, which entitled him to a recovery but not for the sum of the damages awarded below.

After defendants’ breach the plaintiff procured the following . estimate from the Mott Iron Works : “We will furnish for Eastern Dispensary, etc., forty-one lines of square heating pipe, etc., as per flue section, submitted by Rose & Stone, architects, for $402. If dispensary should be piped as per specifications of Mr. Richard Deeves, calling for sixty-three lines of pipe, the estimate will be $614.”

In fact the architect had changed the plans so as to call for only forty-one lines of pipe, and these were furnished and set by the Mott Iron Works at a cost to plaintiff of the sum named in the estimate, $402. He was, therefore, damaged only in the difference between this sum and the amount of defendants’ bid, viz.: $248, and a due compensation to be assessed by the jury for trouble and work in obtaining the new bid. He was not entitled to a recovery on a basis of a cost of $614, made upon the specification of the plaintiff, by the Mott Iron Works. The sixty-three lines of pipe were not called for by reason of a change made in the architect's plan, as permitted by the clause of the plaintiff’s contract with the owners, that has been cited. And the fact that defendants agreed to furnish more pipe than was actually used and did not furnish it did not injure plaintiff, for it did not affect the sum plainly received for building. It did not cause the plaintiff to change his bid, and there was no proof of the effect, under the clause allowing the owner to change the work to be done, of forty-one lines of pipe being used instead of sixty-three lines.

By the contract in suit, the pipes that might be furnished -and set or those not used were not to be delivered to the plaintiff and to be his property. If the phrase in plaintiff’s acceptance, “ all to be done according to plan, etc., of Messrs. Eose & Stone, architects, and to their satisfaction,” were not inconsistent with defendant’s promise to furnish and set sixty-three lines, then the implication was the plaintiff would see that an opportunity was given to the defendants to set sixty-three lines of pipe. An omission so to provide would be a breach by plaintiff. The change in the number that was made, was made as we have seen by a contract, that existed at the time of plaintiff’s acceptance. The plaintiff cannot claim a loss on account of something that would be a breach on his part. That is, the defendant could not have set the excess of twenty-one pipes by reason of the breach of the condition precedent to furnish place and opportunity for them to beset.

For these reasons the plaintiff was not entitled to recover the difference between defendants’ bid and $614. Rothing was lost, by defendant’s breach beyond the difference between bid $248 and the bid of the Mott Iron Works, $402. The amount he would receive as his contract, which comprised his whole interest, was not lessened except this difference.

As the contrary view was upheld at the trial there should be a reversal. Judgment and order appealed from reversed and new trial ordered, with costs to be abide the event.

Sedgwick, Ch. J., and Freedman, J., concur.  