Snelling v. Lynch

The instructions to the jury were deficient in not meeting fully the second prayer submitted by the plaintiff in review. The real issue under the pleadings was, whether the defendant had in fact been put to any extra or additional expense, either by the suspension of the work or the necessity of drawing gravel from a greater distance, in consequence of his agreement with the plaintiff in review. If the defendant in review was not liable to pay to his sub-contractor any additional sum beside that stipulated to be paid by the original contract, in consequence of such delay or extra work, then he cannot recover in this action, because he cannot show any liability on the part of the plaintiff in review under the agreement set out in the original declaration. The question was not whether there was delay or extra expense in doing the work, in order to make the change contemplated by the contract of the parties to *446this suit, but whether any extra cost or expense had been occasioned to the defendant in review thereby. It was this only which, according to the averments in the declaration, the plaintiff in review agreed to pay. Unless the defendant in review can prove an actual payment or a liability to pay for extra work and delay in doing the job, or some other inconvenience, injury or loss sustained by him in consequence of his agreement with the plaintiff in review, he cannot recover in this action. Such is the true interpretation of the agreement set out in the amended count, which was proved at the trial. The instructions did not present the case in this light to the' jury, and we fear that they may have been misled by the omission to give more full and explicit directions on this part of the case.

Exceptions sustained.