Hollinsead v. Mactier

13 Wend. 276

Opinion

By the Court,

Savage, Ch. J.

The principal objection to the report is, that the plaintiff did not prove his demand otherwise than by estimates. His proof consisted of examinations of the house by experienced master builders, and estimates by them of the value of the work and materials. This was competent testimony, and in this case entirely satisfactory. In Pepper v. Burland, Peake’s N. P. 103, Lord Kenyon said, if a man contracts to work by a certain plan, and that plan is so entirely abandoned that it is impossible to trace the contract and say to what part of the work it shall be applied, in such case the workman shall be permitted to charge for the whole work done by measure and value, as if no contract at all had ever been made; but so far as the work was done according to the special contract, the price shall be regulated by the contract. The rule thus laid down by Lord Kenyon was adopted by this court in Dubois v. The Delaware & Hudson Canal Campany, 4 Wendell, 289, and according to it the report of the referees is right.

Motion denied.