115 N.Y.S. 573 | N.Y. Sup. Ct. | 1908
It is not necessary to the disposition of the motion for a new trial herein that it should be finally determined whether the per- diem sums contracted to be paid in case of failure to complete within the stipulated time are to be regarded as liquidated damages or as penalties. But it is well to call attention to the facts which have been established, and which have a bearing not only upon this question, but as well upon the other phases of the case to be hereafter referred to. On July 13, 1900, the Holland Torpedo Boat Company made a contract with Lewis Hixon for the construction of a submarine torpedo boat of the “ Holland” type at an agreed price, the same to be delivered completely finished within six months thereafter. Other vessels of the same nature were awarded for construction to Hixon upon substantially the same terms. The building of such boats being largely experimental at that time, not only were the boats not completed within the contract time, but Hixon had a large claim for extra work against the company arising out of the changes found necessary and ordered to be made from time to time as the work progressed. As the result of negotiations a new contract was entered into between the parties May 16, 1901, by which Hixon agreed to complete the six submarine boats still under construction and to deliver them on days certain, the first delivery to take place June 10, 1901, the last October 12, 1901. Time was made of the essence of the contract, and payments of $50' per day, excepting Sundays, for the first week’s delay on each boat, and of $100 per day thereafter, were provided for as liquidated damages in case of delay. Hixon further agreed
¡Judgment accordingly.