Opinion
No. 4016.
Decided June 5, 1951.
In an action to recover the balance due under a contract for the installation of a heating system the defendant is entitled to deduct all losses, which the plaintiff had reason to foresee when the contract was made, as a probable result of improperly installing the system. In such case, where the plaintiff had reason to foresee loss of rentals and expenses incurred by the defendant in an effort to temporarily furnish heat and hot water to tenants in the building, proffered evidence of such losses was improperly excluded and the defendant is entitled to a new trial with with issues limited as the Trial Court may direct.
CROSS ACTIONS, involving the installation of a steam heating system in premises owned by Joseph E. Stephen.
Trial by the Court with a view resulting in a verdict for the plaintiff, Yvette Francoeur, for $1,016.46 and for her as defendant in the cross action. During the trial Stephen excepted to the admission and exclusion of evidence, to the denial of his motions for a nonsuit and a directed verdict, to his motions both as plaintiff and defendant to set aside the verdict and for judgment notwithstanding the verdict in each case. The Court found that the heating system, including a hot water heater, was incomplete and "inadequate to heat the premises and supply hot water," also that the boiler was "too small" and "the radiation . . . inadequate to heat the premises even with an adequate boiler." Other findings were that "The pipes, wiring and some of the radiators are found to be adequate and proper, and for this the plaintiff Francoeur should be compensated. With the addition of more radiation and the replacement of the boiler with a larger one, the system, on completion, would be adequate." The Court found it would cost $3,400 to install a proper system and that "the present system can be converted into an adequate system at a cost of $1,027.95, allowing $175 for the old boiler and $139 for the radiators already installed which would not be used in the converted system." The Court concluded that the work done by Francoeur was worth $2,572.05, and, since Stephen had already paid $1,555.59, the balance due Francoeur was $1,016.46.
Other facts appear in the opinion. Transferred by Grimes, J.
Paul E. Nourie (by brief and orally), for Yvette F. Francoeur a.
Devine Millimet (Mr. Millimet orally), for Joseph E. Stephen.
The parties agree the issue before us is one of damages. They also agree that the rule to be applied in determining them is that of Danforth v. Freeman, 69 N.H. 466, which is that the plaintiff, Francoeur, is entitled to recover for the net benefit which she conferred on the defendant, Stephen. This means that from the reasonable cost of an adequate heating plant the defendant may deduct all damages he has suffered as a result of the plaintiff's failure to fulfill the contract. Danforth v. Freeman, supra; Restatement, Contracts, s. 357, comment g, subs. (1), illustration 3; 17 C.J.S., Contracts 832, 833. These damages include the cost of completing the work, correcting defective workmanship or materials, and in short all losses which the plaintiff "had reason to foresee as a probable result of his breach when the contract was made." Johnson v. Waisman Bros., 93 N.H. 133, 135, and authorities cited.
During trial the defendant offered testimony to show lost rentals and expenses he had incurred in an effort to temporarily heat and furnish hot water to the building which contained rented apartments and a store. It appears on the facts here that the plaintiff had reason to foresee such damages as a probable result of his breach when the contract was made, and the evidence should have been admitted. However, certain competent portions of it were excluded and for this reason there must be a new trial, the issues to be limited as the Trial Court may direct. White v. Schrafft, 94 N.H. 467.
New trial.
All concurred.