Anderson v. Nordstrom

COLLINS, J. The court below found that upon defendant’s failure and neglect to comply with his contract to move plaintiff’s building as he had agreed to do, and for the sum of $135, plaintiff employed one Lunke to do the work, agreeing to pay him $190 therefor, “which appears to be the lowest price plaintiff could procure it to be done for.” Counsel for defendant (appellant) contends not only that the finding was insufficient to justify a conclusion of law that plaintiff was damaged in the sum of $55 by reason of his client’s failure to perform, but that it was not supported by the evidence. [232] We cannot agree with counsel in the claim. Although not artistically drawn, the' finding is equivalent to a finding that the reasonable cost or expense incurred by plaintiff in carrying out defendant’s contract after he had abandoned it was $190. When there is a total failure to perform a contract of this nature, the plaintiff may recover the difference between the contract price and the cost or expense of carrying out its provisions. He is entitled in any case to the difference in value. He cannot increase this by the neglect of reasonable precautions. But, on the other hand, he is not under obligation to take the burden off the defendant’s shoulders, by executing the contract himself, on better terms than the contract calls for. 2 Sedg. Dam. § 617, and cases cited. See, also, King v. Nichols & Shepard Co., 53 Minn. 153, 55 N. W. 604 The finding was supported by the evidence. When about to enter into a contract for the removal of the building, which plaintiff had bought under an agreement to remove it from the land on which it stood before a certain day, and of this defendant was advised, he called for bids. Three were received, defendant’s ($135) being the lowest, and Lunke’s ($200) the next highest. The contract was awarded to defendant. The evidence was ample to sustain the finding that defendant neglected, failed, and really refused to commence work. The plaintiff persistently importuned him to begin, and at the last minute informed him that if he delayed longer Lunke’s bid would be accepted. Finally the plaintiff contracted with Lunke agreeing to pay him $190, or $10 less than his bid. The plaintiff acted with reasonable care and prudence and in good faith when letting the contract to Lunke. From these circumstances it clearly appears that the reasonable cost or expense of moving the building was what he agreed to pay Lunke, and that this amount was what he necessarily had to pay to get the work done. Order affirmed.