Michael v. State

*807Foster, F. J., Deyo and Santry, JJ., concur; Brewster, J., dissents in the following memorandum in which Heffernan, J., concurs: Under undisputed evidence and facts found by the court below, a breach of contract on the part of the State was disclosed as a matter of law. This occurred on or about April 16, 1936, when the State positively refused to give the contractor a supplemental contract for the performance of the extra work which was occasioned by the flood. At that time there is no evidence whatever but that the contractor was in the due performance of its contract. Actual work was at…