
    Emanuel Rau, Appellant, v. Charles Weyand and Company, Respondent.
    
      Delay in performing a contract for the alteration of a machine — remedy of the: owner of the machine —measure of damages.
    
    Where a person, who has entered into a contract with the owner of a machine to-alter it, fails to make the desired alteration within the time limited by the contract, or within a reasonable time if no definite time is specified in the contract,, the owner of the machine is not entitled to recover, as damages for the breach of the contract, the reasonable value of the use of the machine during the time that the delay continues, unless it appears that such a measure of damages was within the contemplation of the parties at the time the contract was made.
    In such a case the owner of the machine, if dissatisfied with the delay, should. inform the other party thereof and have the work done elsewhere.
    
      Semble, that the measure of damages was the cost of having the work done elsewhere.
    Appeal by the plaintiff, Emanuel Rau, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 9th day of September, 1903, dismissing the complaint and allowing the defendant’s counterclaim.
    
      Richard Cohn, for the appellant.
    
      Hugh L. Reavey, for the respondent.
   Willard Bartlett, J.:

The plaintiff sued to recover a balance of $69.95 for work performed and materials furnished in the alteration of an envelope machine belonging to the defendants, who interposed a general denial and a counterclaim for damages alleged to have been sustained by reason of the plaintiff’s delay in the completion of the work. The Municipal Court dismissed the complaint and awarded the defendants. $500 damages on their counterclaim.

There was a conflict in the evidence upon the question whether any time was specified within which the work should be done.' According to the testimony for the defendants the plaintiff undertook to do it in about two weeks, or in a few weeks, but,- according to the plaintiff, no time limit was specified. After the -machine had been on the plaintiff’s premises for about a month it was taken batik by the defendants, who wanted to use it, although the desired alteration had not then been completed. After they had thus taken it back the defendants paid the plaintiff a bill of $96.50 for the work done by him up to that time. They claim to have done this upon his,assurance that he would put it in order very soon. The plaintiff continued to do work upon it from time to time after its return to the defendants’ premises, but apparently without much success in effecting the proposed alteration until he adopted a suggestion made by one of the defendants, and thus finally put it in the desired condition.. The defendants insist that four and a half months have elapsed between the time when the machine was delivered and the completion of the alteration, and they offered evidence showing that the reasonable value of the use of the machine was $7 a day. Upon this proof the trial court has allowed them $500 damages upon their counterclaim.

This was not the proper measure of damages to adopt under the circumstances, and I do not see how the judgment can be allowed to stand. Assuming that the plaintiff delayed the completion of the work beyond the time limited by his contract, or if there was no express limitation beyond a reasonable time, and that the defendants were, therefore, entitled to recover gains prevented as well as losses sustained, it is nevertheless true that the damages awarded can be such only as must have been fairly within the contemplation of the parties to the contract at the time when it was made. (Witherbee v. Meyer, 155 N. Y. 446.) It can hardly be held upon the proof in this case that the plaintiff could have supposed that he was incurring or could have intended to incur any such liability as that which has been imposed upon him by this judgment. There is no evidence of any intimation to him at any time, either when the machine was on his premises or after it was returned to the premises of the defendants, that they found fault with him for the delay or suggested that it was unreasonable. Their payment of his first bill when they took the machine back was evidence of an acquiescence in such delay as had occurred up to the time of that payment. The general rule applicable to a failure to construct or repair is that the party for whom the work was to be done may recover the expense of having it done elsewhere. (2 Sedg. Dam. [8th ed.] § 617.) The same rule must apply to a contract to make alterations in a machine-The party desiring the work done cannot increase his damages by unreasonably neglecting (in a proper case) to have the work done elsewhere.” (Ibid.) If the defendants were dissatisfied 'with the procrastination of the plaintiff they should have said so and sent their machine to some one else to make the desired-alteration. This they do not appear to have done, however, and upon the proof in this record they are not entitled to any more than nominal damages for the plaintiff’s delay, though it may very well be that the failure to complete the work within a reasonable time justified a dismissal of the complaint.

There must be a reversal of the judgment and a new trial.

Hirschbbrg, Jerks and Hooker, JJ., concurred.

Judgment of the Municipal Qourt reversed and new trial ordered, costs to abide the event.  