Dunn v. Barton

It is admitted in the complaint herein that the written contract between plaintiff’s assignor and the defendant, a copy of which is made a part of the pleading, was not fully completed, because it is alleged the defendant refused to allow the work (cementing a cellar for a stated sum of money) to be finished. There is no averment in the pleading under which plaintiff could be permitted to show the difference between the contract price and what it would have cost his assignor to have performed the contract, together with such sums of money as the contractor had expended for materials which had gone into the work prior to defendant’s refusal to allow it to proceed; nor was there any finding whatsoever upon the amount of damages suffered by the contractor by reason of defendant’s conduct. The court below evidently held the contract price to be the measure of damages, and ordered judgment accordingly. This was erroneous. Glaspie v. Glassow, 28 Minn. 158, (9 N. W. Rep. 669;) Pevey v. Schulenburg, etc., Lumber Co., 33 Minn. 45, (21 N. W. Rep. 844.) The findings were defective in this regard, and a judgment based upon insufficient findings cannot be sustained. Benjamin v. Levy, 39 Minn. 11, (38 N. W. Rep. 702,) and cases cited. It is quite apparent from the evidence that but few dollars are involved in this appeal, for the plaintiff’s assignor had nearly • completed the work *417upon the cellar when ordered to desist by defendant. For that reason we are of the opinion that the prevailing party should not be allowed statutory costs in this court; and it is so ordered.

Judgment reversed.

ÍTote. A motion for reargument of this case was denied May 11, 1889.