J. R. LOFTUS, INC., RESPONDENT, v. DAVID R. WHITE ET AL., APPELLANTS.
85 N.Y.2d 874, 649 N.E.2d 1196, 626 N.Y.S.2d 52 (1995).
March 23, 1995
3 No. 64 (1995 NY Int. 060)
Decided March 23, 1995
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Jonathan P. Harvey, for Appellants.
James E. Hacker, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs to
abide the event, and a new trial ordered.
Plaintiff-contractor sued defendants to recover damages for breach of
an oral contract involving construction of a house. Plaintiff
prevailed after a jury trial, and the Appellate Division affirmed in a
3-2 decision. An appeal as of right ensued (CPLR 5601(a)).
The trial evidence disclosed that the parties had agreed to
plaintiff's $90,000 fee for construction of the house, a payment
schedule, and a completion date. The parties also agreed that the
defendants would pay for the construction on a cost-plus basis. The
record is unclear and in dispute as to whether the parties agreed to a
one-year warranty provision as an essential term of the oral contract.
Also in dispute is whether the $90,000 fee (1) was contingent upon
plaintiff's completing construction of the house, and (2) represented
both plaintiff's overhead and profit or, rather, plaintiff's
anticipated net profit. Shortly after plaintiff performed preparatory
work on the building site, but before beginning actual construction on
the house, plaintiff discovered that defendants had hired another
contractor.
The trial court instructed the jury on the subjective and objective
elements of contract formation, but did not specifically charge the
jury with respect to the legal consequences of the disputed warranty
provision. The jury rendered a special verdict for plaintiff in the
amount of $96,221.20 -- the $90,000 agreed upon fee plus plaintiff's
out- of-pocket expenses -- and 50% of court fees. Supreme Court
entered judgment for plaintiff minus the court fees, and the Appellate
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
The order of the Appellate Division should be reversed, with costs to abide the event, and a
Plaintiff-contractor sued defendants to recover damages for breach of an oral contract
The trial evidence disclosed that the parties had agreed to plaintiff's $90,000 fee for
The record is unclear and in dispute as to whether the parties agreed to a one-year warranty
Also in dispute is whether the $90,000 fee was contingent upon plaintiff's completing
Shortly after plaintiff performed preparatory work on the building site, but before beginning
The trial court instructed the jury on the subjective and objective elements of contract
The jury rendered a special verdict for plaintiff in the amount of $96,221.20 -- the $90,000
A trial court is required to state the law relevant to the particular facts in issue, and a
The trial court failed to apprise the jury of a potentially dispositive legal precept,
Had the jury found, on proper instruction, as defendant requested, that the parties agreed to
Since there must be a new trial, we also emphasize the need for definitive jury instructions
Notwithstanding the cost-plus formula of the putative contract, plaintiff would not
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