The opinion
PARDEE, Circuit Judge
(dissenting). I agree with the majority of the court on the questions of practice decided) but dissent on the merits. The contract between the city of Key West and George J. Baer was a letting to the said George J. Baer of the work of grading, guttering, curbing, and constructing pavements and sidewalks and cross gutters in the city of Key West. The manner of payment was distinctly specified as follows:
“Payment will be made monthly, on estimates made by the engineer of material furnished on the ground, and work done; twenty per cent, of said, estimate being reserved until the final estimate is made. When all the work embraced in this contract is fully completed, agreeable to the specifications and stipulations of this agreement, and accepted by the engineer, said engineer shall cause a final estimate to be made' of the amount and value of said work, according to the terms and prices of this agreement.”
This contract was construed in the court below so as to hold the city of Key West liable as purchaser for all the material the contractor, Baer, saw fit to furnish on the ground, and this construction is approved by a majority of this court; and the result is that, in a suit for damages for breach of a contract on the part of a municipal corporation for completed work, the city is made liable, not only for all the completed work, all the profits that the contractor would have made on brick gutters and crossings, on curbing-unset, and on excavations that were not made, but also for a lot of brick and curbing material furnished on the ground, which was íiever delivered to or accepted by the corporation. Further than this, interest is given, as additional damages, on the prospective profits and price of material from judicial demand. If it is conceded' that the contract between the city of Key West and the appellee, Baer, was so violated and broken by the city as to give Baer an action for damages, then, under suitable allegations, the appellee, Baer, should have been permitted to recover the amount of profit which he would have made if he had been allowed to complete the contract; the same to be arrived at by taking the difference between the cost of doing the work and what he (Baer) was to receive for it, making a reasonable deduction for the less time engaged, and for the release from the care, trouble, risk, and responsibility attending the full execution of the contract; and neither the contract nor the circumstances of the case warranted adding to such damages the cost of material which the contractor had provided for the performance of the work, but which was un *447 used. If, by reason of the contract, the contractor had supplied himself with material for the construction of the work, — which construction, by the fault of the city, he was not allowed to make, — ■ and such material had depreciated in value, or, by reason of its being placed in a suitable position for use in the work, was not worth its market value, such damages could be undoubtedly recovered if sued for and proved. But no such damages were alleged or attempted to be proved; on the contrary, the suit, so far as material is concerned, is one for the price against the city of Key West, as a purchaser of the same.
In my judgment, the contract was erroneously construed in the circuit court. What in the contract was expressly declared to be maimer of payment only, and which clearly meant no more than that the city of Key West, for the perfected work, should advance, from time to time, pending the completion, such portions of the contract price as the -work completed and the material on the ground would justify, was construed in the circuit court to oblígate the city not only to pay for completed work, but also to purchase such material as the contractor should furnish on the ground for the purposes of the contract. The issue was distinctly made in the court below by the sixteenth plea, as follows: “That said curbing was not, and. never had been, put by the plaintiff into the work contracted for by him;” by the twenty-fourth plea, as follows: “That said bricks were not, and never had been, put by the plaintiff into the work contracted for by him;” and by the twenty-sixth plea, as follows: “That all of the bricks were, shortly after the making of the contract between the plaintiff and defendant, brought by sea to the city of Key West, and placed upon a dock, not under the control of the defendant, and several hundred yards from the nearest place on the streets, to be worked on by the plaintiff, as set forth in the declaration; and that the said bricks, except some sold by the plaintiff, have remained upon said wharf until the present day, and no delivery thereof has ever been accepted by the defendant.” These pleas were demurred to by the plaintiff in the court below, and the demurrers were sustained.
In my opinion, the judgment of the circuit court should be reversed, and a new trial ordered.