Contractscountermandbreach of contractdamagespart performancemitigationcontinued performancelabor and materials
Facts
The defendant engaged the plaintiff to perform work on certain paintings. After the plaintiff had already done some labor, the defendant required him to stop work on the paintings. The plaintiff nevertheless continued the work and was allowed below to recover as if the defendant had never countermanded the order. The opinion expressly declines to decide the defendant's right to retake the pictures without payment.
Issue
When a party who ordered work later directs the worker to stop, may the worker continue performance and recover the full contract amount as though no countermand had occurred? Or are damages limited to compensation for work and materials already furnished plus legally assessable damages for breach?
Rule
If a party ordering work countermands the order and thereby breaches the contract, the other party is entitled to damages for the breach, including recompense for labor already done, materials used, and further damages legally assessable for the unperformed portion. But the injured party has no right to persist in performance after the countermand so as to increase the breaching party's liability.
🔒
See the holding & full analysis
Create a free KwikCourt account to unlock the rest of this brief — and practice the case.
The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case
One of 10 multiple-choice questions for this case. Pick an answer to see why.
In Albany, Nora Bennett agreed to catalog and conserve a private collection of rare maps for Eli Turner over six weeks. After Nora had completed one week of work, Eli told her in writing to stop immediately because he no longer wanted the project done; Nora ignored the instruction and worked for two more weeks anyway.
If Nora sues Eli for breach, what is the best measure of her recovery under the governing rule?
Explanation. When the party ordering work countermands the order, that act is a breach creating liability for damages. But the injured party may not persist in performance to enlarge the breaching party's liability. Recovery includes recompense for labor already done, materials already used, and further damages legally assessable for breach, excluding amounts generated by continued performance after notice to stop. (Derived from Clark v. Marsiglia (1845).)