Purdy v. Nova Scotia Midland Ry. & I. Co.
New York Court of Common Pleas
Appeal from city court, general term. Action by Edward L. Purdy against the Nova Scotia Midland Railway & Iron Company, Limited, to recover on a quantum meruit for work, labor, and services rendered, and materials furnished, at defendant’s instance and request. From a judgment of the city court (28 N. Y. Supp. 758) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals.
1Opinion of the CourtBischoff, J.
An action to recover upon a quantum meruit for the work actually done, and the materials actually furnished, will lie against one who has waived or prevented full performance of an express contract for services by the other of the contracting parties. Clark v. Mayor, 4 N. Y. 388; Jones v. Judd, Id. 411; Niblo v. Binsse, 3 Abb. Dec. 375; Whelan v. Clock Co,, 97 N. Y. 293. In such an action, proof of the express contract is relevant and material as bearing on the measure of damages. Fells v. Vestvali, *41 N. Y. 152; Ludlow v. Dole, 62 N. Y. 617. The proof, therefore, does not necessarily change…
2Cases cited3 opinions
- Myers v. CohnNew York Court of Common Pleas · 1893
- Paige v. ChedseyNew York Court of Common Pleas · 1893
- Whelan v. . Ansonia Clock CompanyNew York Court of Appeals · 1884
3Cited by5 opinions
- United States Ex Rel. Susi Contracting Co. v. Zara Contracting Co.Court of Appeals for the Second Circuit · 1944
- Paul Hardeman, Inc. v. Arkansas Power & Light CompanyDistrict Court, E.D. Arkansas · 1974
- O'Dwyer v. SmithAppellate Terms of the Supreme Court of New York · 1902
- Niles v. SireNew York Supreme Court · 1905
- Kaufman Advertising Agency v. SnellenburghAppellate Terms of the Supreme Court of New York · 1904