Charles Ruff et al., Appellants, v. Marx Rinaldo et al., Respondents

Charles Ruff et al., Appellants, v. Marx Rinaldo et al., Respondents. (Argued December 17, 1873; decided December 23, 1873.) A party permitting the completion of the performance of a contract after the time for performance has expired, does not thereby forfeit Ms right to damages for the breach of the contract as to time. Medium v. Williams (2 Daly, 367) distinguished. The measure of damages for the breach by a contractor of a stipulation in a building contract as to the time of performance, where he has been allowed subsequently to go on and complete the contract, is the value of the use of the building, while the owner is deprived of the use thereof in consequence of the contractor’s delay. This was an action to foreclose a mechanic’s lien. Defendant, Rinaldo, contracted with one Finche to do the mason work on three buildings being erected by him, which was to be completed April 1st, 1872. Finche did not complete it until the first July. Defendant, after the expiration of the time, permitted Finche and his subcontractors (of whom plaintiff was one) to proceed with the work, and made payments on the contract. Held, that this was not a release or discharge of the stipulation as to time, but that Finche was liable for the damages resulting therefrom; which damages were the value of the use of the buildings, while defendants were deprived thereof in consequence of the delay. John B. Perry for the appellants. D. T. Walden for the respondents. [MAJORITY — Grover, J.,] Grover, J., reads for affirmance. All concur. Judgment affirmed.