[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 340
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 341 The counsel for the plaintiffs abandoned upon the argument all claim to recover upon the special count, and conceded that they must recover, if at all, upon the common count for a quantum meruit. Upon this count, therefore, two questions arise in the case, the first upon the right to recover, and the second upon the rule adopted for the assessment of damages.
Much of the apparent difficulty in this case results from the obscure manner in which the facts are stated in the special report. It is not easy to ascertain from the report the grounds upon which the plaintiff's right to recover was placed in the court below, nor the rule adopted in assessing the damages.
The original contract with the water commissioners, if that should be allowed to have any influence in the case, gave them the right at any time to change the form or dimensions or materials of the work. It is clear, under this provision, that the commissioners were authorized to make any change in the dimensions *Page 342 of the work which they might deem proper, although by such change the excavation of rock or other materials might be very materially reduced from the original estimate. Nor would the contractors be entitled to additional compensation, although such change might have the effect to deprive them of the privilege of doing the easiest and therefore the most profitable part of the work. They took upon themselves this hazard by the terms of their contract.
But this provision, although it gave the commissioners power to direct in good faith any change in the form or dimensions of the work, did not authorize them to stop the work in an unfinished state, and thus arbitrarily annul the contract. And this was a question for the referees to determine, whether the commissioners simply varied the form or construction of the reservoir so as to make a less amount of excavation sufficient, or put an entire stop to the work, leaving the reservoir unfinished. Nothing but the conclusions of the referees is given in the report of facts, and if I understand the language of the report, the referees found in favor of the latter proposition. It is that "they have ascertained from the proof that the plaintiffs have been stopped by the defendants in the performance of the entire work." I infer from this that the defendants stopped the work before the job had been completed, and not that they concluded to change its form or dimensions so that less work was required than the original estimate contemplated. Whether the evidence before the referees was sufficient to sustain this finding we have no means of ascertaining. If it was not sufficient, the error can not be corrected in this court, but it should have been corrected in the court where the action was pending.
On the question of damages the special report is more obscure, if possible, than upon the question just considered. It is clear that under the common counts the plaintiffs can not recover the same amount of damages which they might be entitled to recover in an action for a breach of the special contract. They must be confined, in this action, either to the price of the work stipulated in the contract, or the actual worth of the work done. When parties deviate from the terms of a special contract, the contract *Page 343 price will, so far as applicable, generally be the rule of damages. But when the contract is terminated by one party against the consent of the other, the latter will not be confined to the contract price, but may bring his action for a breach of the contract and recover as damages all that he may lose by way of profits in not being allowed to fulfil the contract; or he may waive the contract and bring his action on the common counts for work and labor generally, and recover what the work done is actually worth. But in the latter case he will not be allowed to recover as damages any thing for speculative profits, but the actual value of the work and materials must be the rule of damages. He can not assume the contract price as the true value of the work necessary to complete the whole job, and then recover the proportion which the work done will bear to the whole job, although it may amount to more than either the contract price or the actual value. This would be allowing indirectly a recovery for speculative profits upon the common counts. If the party seeks to recover more than the actual worth of his work, in a case where he has been prevented from performing the entire contract, he must resort to his action directly upon the contract; but when he elects to consider the contract rescinded, and goes upon the quantum meruit, the actual value is the rule of damages. The injustice of any other rule is very apparent in this case. Several different kinds of work are specified in the contract, and a specific price per yard attached to each. The plaintiffs have selected the rock excavation from the different kinds of work specified, and proved that the part performed was worth some three times as much per yard as the part remaining unperformed, and have recovered accordingly; although had all the different kinds of work specified in the contract been taken into consideration, it is quite probable that upon a general average of the work the part performed would be found no more difficult than that remaining unperformed. It is at all events quite clear, that justice could not be done without an investigation of all the different kinds of work specified. The contract is entire, and if it be resorted to at all as regulating the damages, *Page 344 it should only be resorted to in connection with all the kinds of work specified therein.
This question then arises: what rule did the referees in fact adopt? The special report, in giving their final conclusion, says, "the price of the rock excavation was fixed at one dollar per yard, which they have been governed by, taking the whole quantity originally required to be excavated; that they have ascertained the relative value of the whole quantity excavated and of the quantity remaining not excavated; and comparing such relative value, they find there is due from the defendants to the plaintiffs, for the portion excavated, the sum of $46,800." Although this is any thing but a lucid statement, yet if it means any thing it must mean that the referees neither allowed the actual value of the work performed, nor the price per yard stipulated in the contract; but assuming the estimated quantity as the whole rock excavation, they ascertained its aggregate value at one dollar per yard. They then assumed that the part performed was worth some three times as much per yard as that remaining unperformed, and assessed the damages accordingly, assuming the average value of the whole work at one dollar per yard, making an aggregate of $150,000. By this means, it will be noticed that the plaintiffs were enabled to recover for some 66,000 cubic yards of excavation nearly $113,000, a much greater sum than the cubic yards actually excavated would amount to, either at one dollar per yard or at the price per yard which the excavation was proved to be worth. At the former price the plaintiffs had received the whole amount due, into some $3483,49, which was conceded to be due; and at the highest prices proved for the work done, there would remain due some $34,088, a sum much less than the amount found due by the referees.
It is clear, therefore, whether I am right or wrong in the interpretation which I have given their report, that an error has been committed by the referees, for which the judgment of the supreme court should be reversed and a new trial ordered,
Judgment reversed. *Page 345