
    No. 8068.
    Thomas Bergen vs. The City of New Orleans.
    The failtn e of the City to pay cash each month for a contractor's work justifies him in abandoning his contract when such payment is expressly stipulated in it.
    Expected profits from a contract to be realised in the tature, which are dependent upon contingencies, cannot be included in a judgment for damages for its violation, and especially when both allegation and proof are general and'vague.
    A judgment against the City of Now Orleans for the value of services rendered under a contract must be paid out of the revenues.of. .the year for which the contraot was made.
    APPEAL from the Fifth District Court for the Parish of Orleans. Boyers, J.
    
      W. S. Benedict and Jos. P. Hornor for Plaintiff and Appellee.
    C. F. Bock, City Attorney, and Wynne Boyers for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff contracted with the City to clean and repair the streets of the Third District for two years commencing July 1, 1877, for the price and sum of fourteen thousand seven hundred and fifty dollars per annum, payments thereof to be made cash by the City monthly, except that ten per cent, of each monthly payment was to he retained as guarantee.

The City did not pay the instalments later than June, 1878. The contractor continued his work until Dec. 17th following, when he formally notified the City that its failure to pay him as promised compelled . him to cease. He has sued for $614.55, sum total of the per-' centage retained for five months, from July to November, both inclusive—$634.40 for work of December to day of abandonment—and $500 of expected profits for each month of the unexpired term of the contract.

The City pleads his abandonment of the work as a violation of the contract which release.s her from all liability.

To sustain this plea would be to enable her to take advantage of her own wrong. She promised to pay cash each month. Because of that promise, she was enabled to get a lower bid for the work than she could otherwise have done. Because of her failure to keep her promise, the plaintiff was compelled to abandon work and discharge his force, and as he alleges lose materials. The fault was hers and she must pay the first two items mentioned.

But we cannot include in our judgment the expected profits, which are alleged in a round sum and proved by the plaintiff in like manner by his own testimony. The claim is too vague, even if it were not open to the objection that the contemplated gain depended for realization on future contingencies that might diminish the amount, or would wholly consume it. Therefore, • ■

It is ordered and decreed that the judgment of the lower court is amended by reducing the sum therein named to twelve hundred and forty-eight dollars and ninety-five cents, and as thus amended it is affirmed, the plaintiff to pay the costs of appeal.

On.Application for Rehearing.

The defendant has called our attention to the omission in the judgment of the lower court, and in our decree, to direct that it should be paid out of the revenues of the year when the services were rendered. Had the matter been called to our attention, we should not have omitted it. A rehearing is granted.

On Rehearing.

It is ordered and decreed that our decree is amended so that the same is ordered to be paid out of the revenues of the year 1878, and as amended it rest and remain the judgment of the Court.  