
    Francis Curnan, Resp’t, v. The Delaware & Otsego Railroad Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    1. Contract—Rescission.
    A contract for building a railroad provided that the company could dissolve it on five days notice and on payment of the amount due and a liquidated sum. On the death of its president who furnished funds for the work the company directed the work suspended, and finally ordered the removal of all tools, etc. Meld, that a finding of a dissolution of the contract by the company was sustained by these facts.
    3. Same—Evidence.
    In an action upon such contract evidence of conversations with the person who furnished the funds is not inadmissible under § 829 of the Code. The company does not hold through such person within the meaning of the section.
    Appeal from judgment in favor of plaintiff, entered on the decision of the court on a trial without a jury. Action to recover for a breach and dissolution of a contract for building a portion ■of defendant’s road. The contract provided that the company could dissolve it on five days notice, in which case it should pay all sums due and also the sum of $3,000 as liquidated damages. Thomas Cornell, the defendant’s president, furnished the funds for the work. The other facts appear in the opinions. The following memorandum was delivered at the circuit: Barnard, J. —I find that the contract was broken by the defendant. That in the spring of 1890 the defendant ordered all work to stop, that the company requested the plaintiff to keep men, teams and tools ready for an immediate commencement of the work as soon as the interruption in the work caused by the death of Cornell, who supplied the funds for the railroad, or rather who was building this railroad in defendant’s name, ceased. That eleven days after the stoppage of the work the defendant requested the plaintiff to discharge his men and still keep horses, wagons, carts, tools, and all the implements and equipage ready. That at the end of four months the defendant gave notice to remove all the property, which plaintiff did at once. That the amount paid the men was $1,500, and the value of the use of the property kept idle was over $2,000, but the plaintiff has only claimed that sum. There is justly for work done due $13,866.46, with interest on the several parts thereof as claimed in. the complaint. The plaintiff is entitled to recover the $3,000 stipulated damages as for a cancellation of the contract "by the company. The only thing lacking is the five days notice in writing and the payment of this "back work. This notice was waived by the contractor. He offered to take this back pay and the stipulated damages, and the reason for their not giving the notice is very apparent. Mr. Cornell died, and he was, in fact, the builder of this road. The company did not give this notice because it expected a re-commencement of the work, but it directed the contractor to stop, and he did stop. Judgment for the plaintiff for the work, for the stipulated damages, for the cost of keeping men and teams, and so forth, after April 1, 1890.
    
      O. D. B. Hasbrouck, for app’lt; P. Cantine (John Haclcett, of counsel), for resp't
   Dykman, J.

This is a common law action for the recovery of money based" upon an agreement in writing between the plaintiff and defendant for the construction of about twenty-five miles of single track railroad.

There has been a trial before a justice of the court without a. jury, who decided in favor of the plaintiff and from the judgment entered upon such decision the defendant has appealed.

The findings are full and well supported by the testimony which would justify a larger recovery, but for some difficulty about the complaint which we will not notice as the plaintiff has not appealed.

The justice of the case is entirely with the plaintiff, and the judgment does as much for him as can now be done, although it is evident he has not recovered his whole damage.

The defendant contends that the contract was not dissolved, but the finding of fact is that the defendant directed the plaintiff to discontinue work March 31, 1890, and refused to allow him to continue, by reason whereof the plaintiff furnished no more work or materials under the contract

It is further found that by the terms of the contract it could be dissolved by the defendant, and then the finding enumerates many acts of the defendant which are sufficient to justify a finding of a breach and dissolution of the contract and a refusal to allow the plaintiff to complete the same.

Such interpretation of the conduct of the defendant is reasonable and meets with our entire approbation.

If the interpretation contended for by the defendant prevails, then -the contract will never be terminated by its inaction and refusal to permit the plaintiff to proceed and he will be without recovery.

"We cío not think the admissions of the conversation between the plaintiff and Thomas Cornell, deceased, was error.

The corporation is the defendant, and it does not hold through Cornell in any sense within the meaning of § 829 of the Code.

We find no error in the record nor anything requiring further notice in this opinion. It is not a case for elaboration upon paper; Justice has been done, and the judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.  