Village of St. Bernard v. Reig & Marty, Partners, & Co.

Hamilton Circuit Court

Village of St. Bernard v. Reig & Marty, Partners, & Co.

7 Ohio Cir. Dec. 539

DecidedJanuary 15, 1897

StatusPublished

This text of 7 Ohio Cir. Dec. 539 (Village of St. Bernard v. Reig & Marty, Partners, & Co.) is published on Counsel Stack Legal Research, covering Hamilton Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Village of St. Bernard v. Reig & Marty, Partners, & Co., 7 Ohio Cir. Dec. 539 (Ohio Super. Ct. 1897).

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Opinion

Smith, J.

We incline to the opinion that the court of common pleas erred on the trial of this case, in refusing to receive parol evidence offered by the defendant as to what the contract really was. There was no allegation in the pleadings or proof offered by plaintiff that the contract was in writing. It tended to show that a proposition was made to the council by plaintiff to superintend the erection of the building for four per cent, of the cost thereof, but it does not appear that this was in writing. It was accepted by the council by a resolution duly passed, but if it was [540]*540verbal, this would not prevent the defendant from showing what it was.

But we think the court clearly erred in refusing to allow the defendant to' show that the plaintiff suffered no injury by the alleged breach of the contract on the part of village. The contract claimed was for the personal services of the plaintiff in superintending the erection of the town hall; and the breach claimed was the refusal of the village to allow them to do so. The defendant then offered to prove that the superintendence of the building would have required the whole time ®f the plaintiff for six months, and that during the time required for the erection of the building the plaintiffs were not idle, but were employed in like services for others at a much greater compensation than they would have received if defendants had allowed them to do this work. This was rejected, and, we think, wrongfully. The action was to recover damages sustained for the breach of the agreement, not for work actually performed. They could properly recover only their actual •oss, and it was not necessarily what they would have received if they had performed the service. In the ease of a contract for pergonal services, and a wrongful discharge before the work contracted for is completed, or where the person is wrongfully prevented from doing any work under the contract, he is not allowed to remain idle for the whole or the residue of the time and recover the contract price. If he can get like employment he should do so, and if he receives a sum equal or greater Ilian that contracted for in the first instance, how is he damaged? See a full discussion of this subject in the decision of the case of James v. Allen County, 44 O. S., 226.

The court also erred in directing the jury to return a verdict for $571.11, and in refusing to grant a new trial. The judgment will be reversed,1 and the cause remanded to the common pleas for a new trial.

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Smith, J.

We incline to the opinion that the court of common pleas erred on the trial of this case, in refusing to receive parol evidence offered by the defendant as to what the contract really was. There was no allegation in the pleadings or proof offered by plaintiff that the contract was in writing. It tended to show that a proposition was made to the council by plaintiff to superintend the erection of the building for four per cent, of the cost thereof, but it does not appear that this was in writing. It was accepted by the council by a resolution duly passed, but if it was [540]*540verbal, this would not prevent the defendant from showing what it was.

But we think the court clearly erred in refusing to allow the defendant to' show that the plaintiff suffered no injury by the alleged breach of the contract on the part of village. The contract claimed was for the personal services of the plaintiff in superintending the erection of the town hall; and the breach claimed was the refusal of the village to allow them to do so. The defendant then offered to prove that the superintendence of the building would have required the whole time ®f the plaintiff for six months, and that during the time required for the erection of the building the plaintiffs were not idle, but were employed in like services for others at a much greater compensation than they would have received if defendants had allowed them to do this work. This was rejected, and, we think, wrongfully. The action was to recover damages sustained for the breach of the agreement, not for work actually performed. They could properly recover only their actual •oss, and it was not necessarily what they would have received if they had performed the service. In the ease of a contract for pergonal services, and a wrongful discharge before the work contracted for is completed, or where the person is wrongfully prevented from doing any work under the contract, he is not allowed to remain idle for the whole or the residue of the time and recover the contract price. If he can get like employment he should do so, and if he receives a sum equal or greater Ilian that contracted for in the first instance, how is he damaged? See a full discussion of this subject in the decision of the case of James v. Allen County, 44 O. S., 226.

The court also erred in directing the jury to return a verdict for $571.11, and in refusing to grant a new trial. The judgment will be reversed,1 and the cause remanded to the common pleas for a new trial.

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Bluebook (online)

7 Ohio Cir. Dec. 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/village-of-st-bernard-v-reig-marty-partners-co-ohcircthamilton-1897.