On appeal from the Second Judicial District Court, Bergen county.
For the plaintiff-appellant, Osie M. Silber.
For the defendant-appellee, Thomas S. Doughty.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The facts on this appeal are as follows: The plaintiff sued on two counts. First Count. That plaintiff and defendant entered into a written contract dated January 15th, 1930, whereby plaintiff offered to furnish defendant a certain course of instruction for about two years, for the sum of $225. Defendant accepted the offer. He made payments
(totaling $55) up and until about June, 1930, at which time he ceased making further payments. The last paragraph of the agreed state of case states that there was a continuation of the services up to October, 1931, and an extension of the account until January 1st, 1932. We do not think that this has any bearing on the issue involved. Second Count. This was on a book account. The defendant, upon ceasing to make further payments under the contract, tendered the text books to the plaintiff and acceptance thereof was refused. The suit was brought subsequent to January 18th, 1932, which was after the last payment date under the contract. The plaintiff proved no special damage. It relied simply on the breach of the contract by the defendant as the basis upon which it claimed the right to recover the full amount of the contract price, less, of course, payments made thereon by the defendant.
The trial judge applied the rule adopted in the case of Kehoe v. Rutherford, 56 N.J.L. 23, and held that the plaintiff had failed to make the necessary proof thereunder and was therefore not entitled to recover. Judgment was entered for the defendant. The propriety of that determination is before us for review.
In the case of Kehoe v. Rutherford, supra, it was held where the work contemplated by a contract was only partially performed because of the wrongful act of the defendant, the legal measure of damages which the plaintiff is entitled to recover is generally for the work done, such a proportion of the entire price as the fair cost of that work bears to the fair cost of the whole work, and in respect to the work not done, such profit as he would have realized in doing it. This is the well established law. Cavanagh v. Ridgefield, 94 N.J.L. 147; Sullivan v. Magnolia Construction Co., 96 Id. 214. But is this rule of law applicable to the instant case? We think not.
The contract between the parties, inter alia, provides that "* * * should any part of the above fee become due and remain unpaid for sixty days or more, the entire balance may, at the option of the Institute be declared immediately due and payable. This contract is not subject to revocation * * *."
The damages are clearly stipulated in the contract ...