5 N.Y.S. 347 | N.Y. Sup. Ct. | 1889
This action is for the recovery of the balance upon a contract for building two iron ferry-boats. The parties entered into an agreement in writing in June, 1886, by which the plaintiff undertook to build two boats for the defendant, and deliver them in Hew York on or before the 1st day of January, 1887, for the sum of $72,000 each, and the sum of $60 a day was fixed and liquidated as damages for the delay beyond that date. After the construction of the boats had been commenced, and on the 7th day of September, 1886, the parties executed a supplemental agreement for the construction of a deck saloon upon each of the vessels for the additional sum of $5,000 each. The last contract contains a proviso against the extension of the time for the performance of the first contract, but fails to provide for any damage for failure to complete the additional work within the limit of time specified in the original agreement. One of the boats was completed and delivered in April, 1887, and, as we understand the case, the boat was accepted, and all claims for deduction in respect to that boat were compromised and adjusted at the time of such delivery. The second boat was also completed, delivered, and accepted in August, 1887, but the defendant deducted and reserved from the amount due for the construction of that boat the sum of $60 a day for 220 days from January 1 to August 9,1887, under the claim for liquidated damages, amounting to the sum of $18,200; and this action is brought to recover that sum of money, with a balance of $212.50 for extra work on the second boat. To excuse the delay in the completion of the boats and the failure to deliver the same within the time limited in the original agreement, the plaintiff introduced proof tending to show that after the execution of the
In our view the success of the defense interposed by the defendant in this action would be little less than a reproach to the administration of justice. Under the original contract between the parties the defendant could force from the plaintiff the sum of $60 for every day of delay in the delivery of the boats after the 1st of January, 1887, and yet, with full possession of knowledge of that fact, the officers of the company directed changes and alterations in the work which they knew would necessitate much delay, and many of such changes were ordered long after the time originally fixed for the close of the work. The law can place but one construction upon such conduct. It constituted a plain ease of waiver of the provisions of the contract. The orders and directions of the officers of the defendant to proceed with the work after the 1st day of January, 1887, justified the plaintiff in the belief that the delay necessitated by the work directed to be done by him met with the acquiescence of such officers. Such was the only natural inference to be drawn from their conduct. It was more than a consent to the delay; it amounted to a positive direction for delay, and so constituted a waiver of the provisions of the contract, and a waiver to all claim for damages by reason of such delay, and an extension of the time for the performance of the work. Although the judgment in this case stands fully justified by legal principles, yet it stands equally well upon adjudicated cases. Smith v. Gugerty, 4 Barb. 614; Stout v. Jones, 9 N. Y. St. Rep. 570; Stewart v. Keteltas, 36 N. Y. 388; Gallagher v. Nichols, 60 N. Y. 438. We find no errors, and the judgment should be affirmed, with costs.