Baum v. Beacon Feeds, Beacon Division of Textron, Inc.

31 A.D.2d 734, 297 N.Y.S.2d 24, 1968 N.Y. App. Div. LEXIS 2731

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1968
• Status: Published

Opinion

Judgment insofar as it awarded damages in the sum of $2,016 unanimously reversed on the law and facts and a new trial granted solely on the issue of damages and otherwise judgment affirmed, without costs to either party. Memorandum: The record is sufficient to support the finding of the jury that a contract existed between the parties which was breached by defendant. The mere fact that the agreement lacked mutuality at its inception because plaintiff was not obligated to buy the feed and defendant was not obligated to render debeabing services does not prevent the existence of a valid contract; once the plaintiff performed, defendant became obligated to perform. A promise void when made for want of mutuality of obligation becomes valid and binding upon the performance by the promisee of that in consideration of which such promise was made (Willetts v. Sun Mut. Ins. Co., 45 N. Y. 45). The record, however, does not support the finding that plaintiff was damaged in the amount of $3,000 on the cause of action alleged in the complaint. Under the facts in this ease the damages should he measured by such value of the egg production lost to plaintiff as a consequence of defendant’s breach of contract as plaintiff may be able to show with reasonable certainty, together with any other damages proximately resulting from the breach of contract (see New York Law, Damages, Fuchsberg, §§ 2, 21). (Appeal from judgment of Cayuga Trial Term in action on alleged oral contract.) Present— Bastow, P. J., Del Vecchio, Marsh, Witmer and Henry, JJ.