Frank v. Handel

107 N.Y.S. 116

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 29, 1907
• Status: Published

Opinion

LEVENTRITT, J.

The evidence discloses a dispute as to whether the contract between the parties had been fully or only substantially performed; the defendant contending that materials of a certain value contracted for had not been furnished. The learned trial justice charged in effect (1) that unless the plaintiffs had proven substantial performance they could not recover, and (2) that if they had proved^ substantial performance they were entitled to the full contract price.

To the second branch of the charge the defendant properly excepted. In the event of substantial performance the plaintiffs were not entitled to recover the full contract price. Under those circumstances their recovery would be limited to such an amount as would represent the difference between the contract price and the sum required to remedy the omissions, which, when remedied, would make performance complete. Following the erroneous instructions of the court, the jury returned a verdict for the full contract price. The defendant having been thus improperly deprived of a reduction to which he might be entitled, he should have a new trial.

Judgment reversed, and new trial ordered, with costs to appellant to abide event. All concur.