Theobald v. Burleigh

23 A. 367, 66 N.H. 574

Opinion

Carpenter, J.

Had the plaintiff without cause abandoned the work and refused to complete the contract, he could recover what the services performed were reasonably worth, less the damages occasioned by his breach of the contract. Britton v. Turner, 6 N. H. 481. The question intended to be raised is, whether the defendant is entitled to damages for the plaintiff’s failure to complete the contract. It was not the plaintiff’s business to obtain permission for the defendant to place the building on her Spring street lot. He was not employed for that purpose. His performance of the contract was interrupted and made impossible either by the defendant’s fault in neglecting to procure the consent of the mayor and aldermen, or by the act of the law without the fault of either party. Tn neither case is the defendant entitled to damages for the plaintiff’s non-performance of the contract. Blake v. Niles, 13 N. H. 459, 460; Kimball v. Railroad, 23 N. H. 579, 582 ; Harvey v. Coffin, 44 N. H. 563, 567 ; Melville v. De Wolf, 4 E. & B. 844 ; Mill Dam Foundery v. Hovey, 21 Pick. 417, 441; Walker v. Fitts, 24 Pick. 191, 195 ; Jones v. Judd, 4 N. Y. 411, 413, 414 ; Heine v. Meyer, 61 N. Y. 171.

Exceptions overruled.

Blodgett, J., did not sit: the others concurred.