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

13 Ohio C.C. 540

• Court: Ohio Circuit Courts
• Decided: January 15, 1897
• Status: Published

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 verbal, this would not ( prevent the defendant from showing what it was.

But we tihnk 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 the 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 of 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 loss, and it was not necessarily what they would have receivod if they had performed the service. In the case.of a contract for personal services, and a wrongful discharge before the work contracted for is completed, or whejre 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 than that contracted fer 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 Ohio St., 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, and the cause remanded to the common pleas for a new trial. .