
    NICHOLAS QUACKENBOS, Plaintiff and Appellant, v. ALEXANDER EDGAR, Defendant and Respondent.
    The breach of a contract by one contracting party gives to the party with whom he contracts a right of action, at law, for the recovery of damages, and such damages are the direct pecuniary loss resulting to the plaintiff from the breach of the agreement (Sedgw. on Bam. 206: 2 Pars, on Oon. 432).
    The fact that the premises, the repairs of which were the subject matter of the contract, were the property of another person than the one who contracted for the work and materials, the defect of, and the damages from which, was the cause of complaint, does not alter the above general rule. The question is, Has the plaintiff who contracted for the work suffered damage from the breach of the contract ? If so, he is entitled to recover.
    A tenant, or a stranger to any interest in the premises, may contract with another person for work and materials to be furnished, for repairs or improvements upon the realty, and suffer damage by a breach of the contract. It matters not that the landlord or the owner of the premises suffered damage also by the breach, and might recover therefor, for a party to the contract who has suffered damage by its breach can always recover the same. In such case he is the real party in interest to the extent of the damage he has suffered, and the question as to whether another party or parties has suóh an interest that they might also recover, although not a party to the contract, should not be considered so far as to affect the general question.
    Plaintiff occupied a house that was the- separate property of his wife, and undertook to repair the same and put it in order, and entered into a contract with a plumber for work and materials on the same, who violated his contract, and by the breach thereof the ceilings and other parts of the house were injured and destroyed, and the damage was repaired by the plaintiff at an expense of several hundred dollars, and he brought suit on the contract to recover damages for the breach of the contract.
    
      Meld, that he could recover.
    
      Before McCunn, Curtis and Sedgwick, JJ.
    
      Decided March 30, 1872.
    Case and exceptions sent to the general term for hearing in the first instance.
    The facts appear from the opinion of the court.
    
      D. M. Shaw, for plaintiff.
    
      Philip Malone, for defendant.
   By the Court.—McCunn, J.

The action is by-plaintiff to recover damages in consequence of the breach of a contract made by defendant with plaintiff to do plumbing work.

The defendant agreed to do the work and furnish materials for plaintiff, work to be done in a workmanlike manner. Plaintiff alleges that defendant did not perform his contract, but did the work unskillfully and negligently, to his, plaintiff’s damage offline hundred and thirty-three dollars.

The defendant’s answer admits the contract, but denies that the work was unskillfully performed, or that the plaintiff sustained damage. Defendant also alleges a counter-claim. To this counter-claim a reply was filed. It appeared ou the trial that material damage was done to the house in consequence of leakage from defective work-; that defendant had left a joint in an unfinished state on Saturday afternoon ; the water rose on that night and on Sunday the house was much injured. The house was owned by the wife of plaintiff, but the plaintiff had undertaken to put it in order, and made all the expenditure for that purpose.

On motion the court dismissed the complaint, on the ground that the action had been brought by the wrong party. We think this error.

Where a contract is made, and a breach of that contract takes place, and injury arises in consequence of that breach, the party sustaining the injury can offset that injury against any sum due on the contract. This is familiar learning (Sedgwick on Dam. 206). It would be absurd to compel a party to pay on the contract, and leave him to his remedy by separate suit for damages arising on that very contract. Prior to the Code, in actions for work and services, the employer could always recoup damages sustained through the negligent or unskillful manner of the work (Stell v. Hall, 20 Wend. 51, 52 ; Ives v. Van Epps, 22 Id. 155 ; Batterman v. Pierce, 3 Hill, 171, 175). And all breaches of contracts giving a claim for recoupment or a counter-claim constitute causes of action which the employer may enforce by action against the employee (Vassear v. Livingston, 13 N. Y. 252; Halsey v. Carter, 1 Duer, 667; Gillespie v. Torrance, 25 N. Y. 306; Seldek, J., pp. 309, 310, 311). In all cases where the. court nonsuits, the facts proven must be deemed established in favor of plaintiff. The plaintiff here established a breach of contract on the part of defendant, and in consequence he showed he had sustained pecuniary loss. This he was entitled to offset, and his not being allowed to do so was error. The judgment should therefore be reversed. It is of no consequence who owned the house.

Sedgwick, J. (concurring.)

I think there should be a new trial. The plaintiff made the case that the defendant had contracted to do for him, and furnish to him, work and materials, in and about certain plumbing, and had contracted that the work should be done in a sound and workmanlike manner. Proof was given tending to show that work had been done under the contract, but in an unskillful and unworkmanlike manner. Proof also was given to show that this breach of contract resulted in more than nominal damage to the plaintiff. The plaintiff, in giving his case, produced testimony that the work done by defendant was in a house occupied by plaintiff, but owned by his wife, and that the leaking from the plumbing work, done in this negligent and unworkmanlike manner, damaged the house in various respects, and that the plaintiff repaired these damages at a cost to him of certain amounts proved.

When the plaintiff rested, the defendant moved to dismiss the complaint on the. ground that the action had been brought by the wrong party, the title to the house being in the wife. This motion the court granted.

There was no testimony given to show that the plaintiff was under such a duty to anybody to repair the house, that the amounts paid by him for such re-' pairs may be considered in fact the measure of damages directly from the breach of the contract. That may depend upon circumstances, of which no evidence was given on the trial. As the case stood, he was not entitled to recover these amounts as damages. But there was evidence given of damage more than nominal, and the plaintiff had a right to take a verdict from the jury as to the amount of compensation he was entitled to.  