
    Patrick Gallagher, Respondent, v. Jacob Hirsh, Appellant.
    
      When the question as to whether a guaranty or a mere representation was made is for the jury — measure of damages for the breach of a guaranty as to a place to store material — construction, in a contract for work to be done, of the word “ omissions ” — damages where part of the contract work is done by another.
    
    The complaint in an action alleged that the plaintiff had entered into a contract to construct a new building for the defendant, and that the defendant, for the purpose of inducing the plaintiff'to remove a quantity of old brick and building material from the premises, guaranteed to the plaintiff the use of an adjacent vacant lot for the storage of such brick and building-material, and agreed that the plaintiff should be at liberty to use a portion of the old brick in the construction of the new building; that the defendant did not control the adjacent lot, and the plaintiff was required to remove the brick and other material therefrom, and was thereby prevented from using the old brick in the construction of the new building.
    The answer denied that the defendant guaranteed to the plaintiff the undisturbed possession of the lot, but admitted that he made a representation to that effect in good faith.
    
      Held, that if the contract was as alleged in the complaint, the measure of the plaintiff’s damages was not the value of the brick, which the plaintiff might have used in the construction of the new building, but the cost of removing such brick and obtaining a new place of storage;
    That, under the pleadings, the question as to the nature of the contract should have been submitted to the jury.
    A clause in a contract which provides, “ Should the owner at any time during the progress of the said building request any alteration, deviation, additions or omissions from the said contract he shall be at liberty to do so, and the same . shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation,” by the use of the word “omissions” contemplates things left out of the contract, not such as are taken out of the contract and given to another to perform.
    The measure of the contractor’s recovery for work embraced in his contract and given to another to perform is not the contract price of the work, buj, the profit which the contractor would have earned had he performed the work , at the contract price.
    Appeal by the defendant, Jacob Hirsh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 23d day of December, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d' day of December, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Carlisle Norwood, for the appellant.
    
      L. Laflin Kellogg, for the respondent.
   Van Brunt, P. J.:

The complaint alleged three causes of action. For a first cause of action the plaintiff alleged that the defendant, being the owner of certain premises known as Nos. 3 and 5 West Eighteenth street, in the city, of New York, entered into a contract with the plaintiff to do the excavation and mason work and to construct the walls of a new building to be erected thereon; that the plaintiff, being about to enter upon said work of excavation and construction, the defendant employed the plaintiff to remove a large quantity of bricks and materials then upon the said premises by reason of the demolition of certain old buildings thereon-; that for the purpose of inducing the plaintiff to remove said brick, etc., for a price less than the fair and reasonable value of the work, the defendant represented to the plaintiff, and promised and agreed with the plaintiff, that such brick and other material could be stored and remain upon a vacant lot immediately westerly from and adjacent to the said premises during the period required for the construction of 'such new building by the defendant; and that the defendant guaranteed to the plaintiff the undisturbed possession of such adjacent lot for such purpose and during such period, and agreed that the plaintiff in the construction of the new building should be at liberty to use from such brick a large quantity of good and sound brick in the erection of the walls of the new building ; that relying upon such representations of the defendant the plaintiff undertook to remove such brick and material from the premises of the defendant, to store the same upon such adjacent lot, to select and use therefrom such sound and suitable brick as could properly be used in the construction of such new building, and'ultimately to remove from such premises all of such brick and other material for the sum of $400 ; that such sum of $400 -was much less than the actual value of such proposed work of removal of said material; that the plaintiff, in consideration of said representations, promises and. agreements of .the defendant and of the benefits which would result to him, undertook such work of removal at a price far less than the actual value thereof; that, pursuant to such employment, the plaintiff removed said brick and stored them upon the said adjacent lot, but that the representations of the defendant were in fact untrue and he did not control the said lot used by the plaintiff as such place of storage, and was unable to assure to the plaintiff the free use or the undisturbed possession thereof ; that the plaintiff was required to and did remove a quantity of brick and material from such lot, and was thereby hindered and prevented from using about 300,000 of good, sound and suitable brick so accumulated and stored by the plaintiff in and about said work of construction, all of which he could have so used if said representations had been true ; and that the plaintiff thereby sustained damage in the sum of $900 and interest.

The second cause of action having been dismissed at the opening of the trial, it is not necessary to consider the same further.

The third cause of action was for the list installment of $3,100 due under the contract, and for $631.33 for extra work.

The answer of the defendant denied that for the purpose of inducing the plaintiff to remove the brick and other material referrred to in the 1st paragraph of the complaint, for a price less than the fair and reasonable value of the work, lie promised and agreed with the plaintiff that such brick and other material could be stored and remain upon a vacant lot immediately westerly from and adjacent to the premises mentioned in the complaint, and denied that he promised or represented that he would guarantee to the plaintiff the undisturbed possession of said lot for such purpose and during such period. The defendant admitted that he did represent to the plaintiff that such brick and other material could be stored and remain upon said vacant lot, and that he made such representations believing them to be true, and he admitted that in consequence of such representations the plaintiff agreed to remove such brick and material for a price less than he would have been entitled to if it had not been for such representation. The defendant denied that tlie plaintiff, relying upon the representations, promises and agreements of the defendant set forth in the complaint, did undertake to remove such brick and to store the same upon said adjacent lot; but admitted that the plaintiff did rely upon defendant’s representations as thereinbefore admitted, and that in consequence thereof he did undertake to remove such brick and material from defendant’s premises and to store the same upon said adjacent lot, and to use the same as alleged in the complaint. The answer denied that the sum of $400 was . much less than the actual value of said proposed work of removal, and denied that the plaintiff in consideration of the representations of the defendant undertook such work of removal ata price far less than the actual value thereof, although the defendant admitted that the plaintiff, in consideration of defendant’s representations thereinbefore admitted, did undertake such work of removal at a price somewhat less than the actual value thereof, provided the plaintiff had had the use of such adjacent lot for the purposes alleged in the complaint. The answer further denied that the representations made by defendant were untrue and that the-plaintiff was hindered from using 300,000 or any such number of brick so stored by the plaintiff, but admitted that by reason of the fact that he was deprived of the use of such lot the plaintiff was obliged to remove said brick from said lot, and alleged that he had no knowledge or information sufficient to form a belief as to the amount of brick and material so removed, and alleged upon information and belief that the plaintiff used or sold all the brick and material so removed by him in and about the construction of other buildings in the city of Hew York. The defendant further denied that the plaintiff had suffered damage in the sum of $900 or any such sum, but admitted that the deprivation of the use of said lot by the plaintiff for the purposes alleged, cost the plaintiff some damage in that the plaintiff was obliged to remove said brick, but .that the defendant had no knowledge or information sufficient to form a belief as to the amount of such damage, and that the defendant had at all times been and then was ready and willing to pay such damage when ascertained.

For answer as to the third cause of action the defendant denied that the last payment specified in said’contract had matured and -that the same was due and owing to the plaintiff, and denied that -the architects-had unjustly and unreasonably refused to furnish a certificate' to the plaintiff as to such last payment. The answer denied that the said sum of $3,100, or any part thereof,, was justly due and owing to the plaintiff; and also denied the allegations in respect to extra ■work (except a portion thereof), the reasonable value of which as •alleged is denied. «

The defendant set up a counterclaim to which the plaintiff duly replied.

In this condition of the pleadings, upon the case coming on for "trial, the learned court below held that the plaintiff upon the admissions in the pleadings, could recover damages for the loss of brick ■claimed in the first cause of action, and left it for the jury to fix the value thereof, and charged the jury that for this sum the plaintiff was entitled to recover.

In this we think the learned court erred. Ho matter if the agreement between these parties was as alleged upon the part of the plaintiff, the rule of damage was not the value of the brick which the plaintiff had placed upon these premises. It seems to us that at most the recovery of the plaintiff must have been limited to what it would have cost him to remove and store these brick for'the purpose of holding them until the time when the building should be ready for their use in its construction. If the plaintiff after a ■demand for the possession of the lot upon the part of the owner .'had allowed the brick to become lost because of his failure to remove them, that does not make the defendant in any way liable for the "loss of the brick. Even under the allegations of the complaint, all "that the defendant guaranteed to do was to furnish a place for the •storage of the brick. If he did not furnish that place, and the plaintiff was compelled to procure another place, the measure of ■damage at the most must certainly be limited to what it would cost ■fo remove the brick and obtain a new place of storage.

The court, also, seems to have erred in refusing to submit to the "jury the question as to the nature of the contract between these parties. The contract as alleged by the conaplaint was denied by -.the answer, and an understanding or agreement of a different nature was alleged therein ; and it was a question for the jury to determine •as to whether there had been any such guaranty as would entitle the plaintiff to recover. The offer in the answer that the defendant was willing to pay whatever damage the plaintiff had sustained by reason of the representations made by him, in no way affected "the necessity of proof as to the nature of the contract in order that •.the damages might" properly be arrived at. It would seem, unless there was an absolute undertaking upon the part of the defendant, that without proof of the fafeity of the representations .made by him, no recovery could be had. All the questions in regard to the-nature of the contract were by the court taken from the jury, and they were only allowed to assess the damage. In this, we think, the= court erred.

In view of the conclusion at which we have arrived, it does not. seem to be necessary to consider the question as to the errors in the: admission of evidence in respect to the number of brick.

The next point to be considered relates to the questions arising-under the third cause of action, which was brought to recover fertile last installment of $3,100 under the mason work contract, and. for certain extra -work. Before the plaintiff had fully completed his work of excavation preliminary to laying the foundation, it was, discovered that the soil was in such a condition that it was not safe-to erect the proposed building thereon; and that it would be necessary to make additional excavations before the plaintiff could carryout his contract for the erection of the buildings upon the premises.. Borings were made to enable the defendant to ascertain what it-would cost to do the extra work, and by order of the architect the: work was stopped until the defendant should decide what to do. After the borings were made the plaintiff was sent for and sketches-' were given to him to estimate the cost of putting down the foundation to rock. The work was actually stopped on the 20th of June, 1895.. On the third of July the plaintiff went to the architects’ office: to submit his estimate for the additional work, and he was told that they Were waiting for an estimate from another party for the same: work. In about fifteen minutes a letter was brought, and after,a. short conference between the architects and a person who was interested in the building with the defendant, they told the plaintiff that they had received an estimate from Sooysmith & Go. for doing this, work and had awarded the contract to them. The plaintiff then resumed his work and started to do the excavating called for by his-contract. He had resumed but a few days when one of the architects told him he would have to stop until Sooysmith had finished, the work for which they had been given the contract. Sooysmith & Go. thereupon went on and performed the additional work of excavation and laid the foundations up to the point from which the-plan originally contemplated that the plaintiff should commence his work of construction. In doing this additional work of excavation, etc., • Sooysmith & Co. necessarily performed part of the work originally included under the plaintiff’s contract, viz., a part of the plaintiff’s excavations aúd a part of the shoring and underpinning of Chiekering Hall which was next to the lot in question. It is claimed upon the part of the defendant that the reasonable value of this omitted work should be deducted from the amount due to the plaintiff ; and the plaintiff claimed that there should be no deduction, because the defendant had not pleaded any omission, and second, because the defendant had no right to take the contract away from the plaintiff and give it to Sooysmith & Co. The clause of the contract under which the defendant bases his claim that that portion of the work which was originally undertaken to be done by the plaintiff and which was done by Sooysmith & Co., in making the additional excavations and laying the additional foundations, should be deducted from the last payment, reads as follows: “ Third. Should the owner at any time during ,the progress of the said building request any alteration, deviation, additions or omissions from the said contract he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.”

Upon the trial it was claimed upon the part of the defendant that the plaintiff had consented to the taking away of this work and to its being done by Sooysmith & .Co. This, however, the plaintiff denied and the court charged the jury that the defendant ha.d no right, to take away any part of the plaintiff’s contract and give it to another without the plaintiff’s consent. This, we think, was a correct interpretation of the clause in question. It is evident that under the word omissions ” were intended to be included these things which were abandoned and left out of the plaintiff’s contract and not such as were taken out of the plaintiff’s contract and given to another to be performed. The word “ omission ” did not mean omitted from the plaintiff’s contract, but omitted from the work; and clearly could not be construed to have allowed the defendant to take two-thirds of the work from the plaintiff and then compel him to perform the rest. The words are “ additions or omissions from the said contract,” evidently meaning additions to or omissions from the work to be done under said contract, which clearly negatives the idea that'they were intended to mean that the defendant should have the right to omit the work from the plaintiff’s contract, in order to give the contract to another to do the same thing.

We think, however, that the court erred in its’instruction to the jury as'to the rule of damage under these circumstances. If the plaintiff was not required to do the work or did not do the work, he certainly was not entitled to recover that which the defendant under the contract had agreed to pay for such work, because that would not be the amount in which he was damaged; but he would be ■entitled to recover the profit he would have made in doing the work at the price mentioned in the contract. The court, however, charged in substance that the plaintiff, after the contract was taken away without his consent, was entitled to recover the amount called for by the contract upon the completion of the work, notwithstanding that he had not done certain parts of it, because it was done by others at the instance of the defendant. This rule of damage was clearly erroneous as it was giving to the plaintiff the benefit of expenditures in the doing of the .work which he had not made. That this was the intention of the court is emphasized by the last instruction given to the jury, in which the Court says: “Under the facts proved in this case the jury can, if they find for the plaintiff under the third cause of action for that portion claimed under the •contract, only find the sum of $3,100 and interest, and no greater or less sum.” As already suggested, this rule of damage was erroneous. We think, therefore, that for the errors committed there should be a new trial.

The judgment should be reversed and a new trial ordered, with Costs to the appellant to abide the event.

Barrett, Rumsey, Ingraham and McLaughlin, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  