Sweeney v. Jamieson

Opinion by

This was an action in the Court below, to recover damages for the breach of a contract to furnish enough common and faced brick, or pressed brick, to complete a building to be erected v>.t Spokane Falls. The appellant, who was tlie defendant below, answered, as a defense to the complaint, a prior breach of the contract on the part of the appellees, in failing to pay for brick as they were delivered, and a release upon his part thereby from obligation to further comply with the contract. Numerous questions upon the introduction of testimony for and against this defense arose in the Court below, and exceptions *258were reserved to the rulings of the Court thereon, and to instructions given by the Court to the jury concerning defense.

We find no error in said rulings or instructions.

We think, however, that there was no evidence in the case to warrant a verdict for the full amount recovered by appellees.

The damages claimed in the complaint were:

1. The difference between the purchase price of the brick, which was procured to furnish the building after the breach by the appellant, and the contract price under the contract with, appellant. ,

2. Damage to the appearance and finish of the- building, caused by appellant’s failure to furnish pressed or faced brick with which to finish the front of the building, thus rendering it necessary for the appellees to finish the front of the building-with common brick.

According to the testimony of appellees, they purchased fifty-seven thousand additional brick with which to finish their building after the default of the appellant, paying $13.50 per thousand for forty thousand, and $15.50 per thousand for the-additional seventeen thousand. As the contract price with the appellant was $9 per thousand, it needs but a simple computation to show that the damage under this head was in the neighborhood of $300.

The verdict against appellant was for $800. The excess over $300, therefore, must have been for a damage to the appearance and finish of the building, caused by the use of common brick in the finish of the front of the building. This defect in the building was a proper subject for the computation of damage, if the evidence on the trial had disclosed that it was the necessary result of the breach of the contract by the appellant.

The evidence, however, shows no more than that the appellees, when they found that the appellant would furnish no more pressed brick, changed their plans as to the finish of the front of the building, and concluded to finish it with common brick. It does not show an inability to procure pressed brick from other persons in Spokane Falls, at the same or a less price than they had agreed to pay the appellant. On the contrary, it shows affirmatively that they failed to make inquiries on the subject before changing their plan of construction.

*259Under these circumstances, they were not entitled to have a verdict from the jury for damage caused by the change. The damages, therefore, were excessive, and the motion for a new trial based upon that ground should have been granted, unless the appellees had remitted the excess.

No offer to remit having been made in this Court, the judgment of the Court below is reversed, and the cause remanded for further proceedings.

¥e concur: John B. Hoyt, Associate Justice.

Boger S. Greene, Chief Justice.