Levenson v. Bollowa

Appellate Terms of the Supreme Court of New York

Levenson v. Bollowa

85 N.Y.S. 386

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 17, 1903

StatusPublished

This text of 85 N.Y.S. 386 (Levenson v. Bollowa) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Levenson v. Bollowa, 85 N.Y.S. 386 (N.Y. Ct. App. 1903).

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Opinion

BISCHOFF, J.

Asserting that the defendants had agreed to pay him $750 for work to be done and materials to be furnished in the erection of a certain extension, and that the agreement was repudiated before the time for performance had arrived, the plaintiff sued for the loss of his expected profits. To support his claim of an actual agreement, the plaintiff testified that he presented a written estimate to one of the defendants, placing the cost at $850, that the defendant said it was too high, but that he (plaintiff) “came to an agreement with him for $750.” It appears, however, from the plaintiff’s own testimony, that this estimate was at that time returned to him by the defendant, who had written upon it, in his presence, “If writ[387]*387ten contract satisfactory, agree to take at $750,” and this very clearly supports the defendant’s testimony that the whole matter was understood to be in abeyance until a definite contract in writing should be made.

No such contract was made, and a recovery upon a cause of action having its foundation in nothing except the plaintiff’s base characterization of the negotiations as an “agreement,” which they were not, is difficult to uphold. Moreover, the only proof of loss of profits was sought to be furnished by evidence that the plaintiff had made a subcontract with one Holst, whereby the latter undertook to erect this structure for $400, the evidence being admitted over objection. The difference between the price to be paid by the- defendants to the plaintiff, and that to be paid by the latter to the subcontractor, upon a contract wholly executory, was not an available measure of damages, and the evidence was not admissible for the purpose of charging the defendants. Devlin v. Mayor, 63 N. Y. 25, 26.

The judgment must be reversed and a new trial ordered, with costs to appellants to abide the event. All concur.

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BISCHOFF, J.

Asserting that the defendants had agreed to pay him $750 for work to be done and materials to be furnished in the erection of a certain extension, and that the agreement was repudiated before the time for performance had arrived, the plaintiff sued for the loss of his expected profits. To support his claim of an actual agreement, the plaintiff testified that he presented a written estimate to one of the defendants, placing the cost at $850, that the defendant said it was too high, but that he (plaintiff) “came to an agreement with him for $750.” It appears, however, from the plaintiff’s own testimony, that this estimate was at that time returned to him by the defendant, who had written upon it, in his presence, “If writ[387]*387ten contract satisfactory, agree to take at $750,” and this very clearly supports the defendant’s testimony that the whole matter was understood to be in abeyance until a definite contract in writing should be made.

No such contract was made, and a recovery upon a cause of action having its foundation in nothing except the plaintiff’s base characterization of the negotiations as an “agreement,” which they were not, is difficult to uphold. Moreover, the only proof of loss of profits was sought to be furnished by evidence that the plaintiff had made a subcontract with one Holst, whereby the latter undertook to erect this structure for $400, the evidence being admitted over objection. The difference between the price to be paid by the- defendants to the plaintiff, and that to be paid by the latter to the subcontractor, upon a contract wholly executory, was not an available measure of damages, and the evidence was not admissible for the purpose of charging the defendants. Devlin v. Mayor, 63 N. Y. 25, 26.

The judgment must be reversed and a new trial ordered, with costs to appellants to abide the event. All concur.

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85 N.Y.S. 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levenson-v-bollowa-nyappterm-1903.

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