Bergen v. City of New Orleans

The opinion of the Court was delivered by Manning, J. The plaintiff contracted with the City to clean and repair the streets of the Third District for two years commencing July 1, 1877, for the price and sum of fourteen thousand seven hundred and fifty dollars per annum, payments thereof to be made cash by the City monthly, except that ten per cent, of each monthly payment was to he retained as guarantee. The City did not pay the instalments later than June, 1878. The contractor continued his work until Dec. 17th following, when he formally notified the City that its failure to pay him as promised compelled . him to cease. He has sued for $614.55, sum total of the per-' centage retained for five months, from July to November, both inclusive—$634.40 for work of December to day of abandonment—and $500 of expected profits for each month of the unexpired term of the contract. The City pleads his abandonment of the work as a violation of the contract which release.s her from all liability. To sustain this plea would be to enable her to take advantage of her own wrong. She promised to pay cash each month. Because of that promise, she was enabled to get a lower bid for the work than she could otherwise have done. Because of her failure to keep her promise, the plaintiff was compelled to abandon work and discharge his force, and as he alleges lose materials. The fault was hers and she must pay the first two items mentioned. But we cannot include in our judgment the expected profits, which are alleged in a round sum and proved by the plaintiff in like manner by his own testimony. The claim is too vague, even if it [524] were not open to the objection that the contemplated gain depended for realization on future contingencies that might diminish the amount, or would wholly consume it. Therefore, • ■ It is ordered and decreed that the judgment of the lower court is amended by reducing the sum therein named to twelve hundred and forty-eight dollars and ninety-five cents, and as thus amended it is affirmed, the plaintiff to pay the costs of appeal.