The Opinion of the Court was delivered by
Treat J.This was an action of assumpsit, brought by Chaney against Sebastian Wise and others.
The declaration counts on an agreement made between the parties, by the terms of which the plaintiff was to furnish certain materials, and do the carpenter’s work of a church, for which the defendants were to pay him at specified rates. It then alleges a part performance on the part of the plaintiff, and concludes with an averment, that the plaintiff was presented by the defendants from completing the contract, whereby he has sustained damages.
The defendants pleaded «ora assumpsit, and a special plea of payment.
The cause was tried by a jury, who found a verdict for the plaintiff for three hundred dollars. The defendants entered a motion for a new trial. The Court denied the motion, and rendered a judgment on the verdict. To reverse that judgment, the defendants prosecute an appeal to this Court.
The refusal of the Circuit Court to grant a new trial is assigned for error. There is a bill of exceptions containing all of the evidence introduced on the trial. The testimony is voluminous, and will not be here stated. It has been attentively considered. It is sufficient to remark concerning it, that it tends to prove the plaintiff’s case, with the exception of the allegation, that he was prevented by the defendants from completing the contract. There is a total failure in this particular. By his declaration, the plaintiff does not claim to recover for materials furnished, or labor done in pursuance, of the contract; but he seeks to recover the damage he has sustained, in consequence of not being permitted to perform the contract. The act of the defendants, in preventing the plaintiff from going on with the contract, is the foundation of the action. The averment in question is therefore a material one, without proof of which, the plaintiff has no right to recover. Failing to sustain this averment, the verdict of the jury was unauthorized, and the Court ought to have set it aside and awarded a new trial.
The judgment of the Circuit Court is reversed, with costs, and the cause remanded for further proceedings.
Judgment reversed.