344 F2d 671 Minot v. Charles Young Construction Inc
344 F.2d 671
Alfred W. MINOT, Essie Minot, also known as Mrs. Alfred Minot, and Richard Suydam, Appellants,
CHARLES YOUNG CONSTRUCTION, INC., a corporation, Appellee.
United States Court of Appeals Ninth Circuit.
April 20, 1965.
E. R. Crain, Agana, Guam, Earl Robinson, Fong, Miho, Choy & Robinson, Honolulu, Hawaii, for appellants.
David M. Shapiro, Agana, Guam, for appellee.
Before BARNES, JERTBERG and MERRILL, Circuit Judges.
On the theory that the contract was terminated, appellants assert that the appellee's measure of damages should have been in quantum meruit rather than pursuant to the contract price. No notice of termination was given by the appellants, however, and the District Court found no breach by appellee which would have warranted termination. The only notice given by appellants was expressly in accordance with the terms of paragraph #9 (Exh. 5). While the notice purports to terminate "in accordance with the terms of paragraph #9," paragraph #9 does not provide for termination, but permits appellants to replace appellee in the completion of the contract.
Appellants assert that the suit was prematurely brought by appellee and that appellee should have awaited completion of the contract in order that the exact cost of completion could have been reflected in the measure of damages. Appellants, however, by the time of trial had given no indication of an intention to complete construction. Had they wished to establish more precisely the cost of completion, they could have done so. Further, as determined by the District Court, appellants were themselves in breach of paragraph #9 by failing to permit appellee to proceed with an offer of completion which had been made by it within the permissible time.
We find no error.