54 Wis. 202 | Wis. | 1882
It seems to us a plain proposition that the complaint states facts which, entitle the plaintiff to recover some damages. The action is upon a bond executed by the defendant Sheriffs -as principal, and by the other defendants as sureties. The bond is conditioned that Sheriffs shall, without delay, well carry out and fulfill a contract thereto attached, of even date with the bond, which is signed by him. By this contract Sheriffs agreed to furnish the material, and construct .and set up in' the plaintiff’s steam-barge, then in process of construction, an. engine, boiler and other machinery, according to the specifications therein stated; the whole work “ to be completed, set up in barge, and ready for trial trip (if vessel shall be ready for same) by the 1st day of April, A. D. 1880.” It is alleged that the barge was not in readiness long enough before the 1st day of April, 1880, so that Sheriffs could complete his contract by that day, but that it was ready so that he might easily have completed it by the 1st of May, which
Other breaches of the bond are stated, but it seems to us these facts alone are sufficient to sustain a' claim for damages by reason of a failure to perform the contract. That is to say, by the contract, as we construe its provisions, Sheriffs bound himself to complete the work to be done by him, by the 1st day of April, providing the plaintiff had the barge ready in season to enable him to do the work by that day; and if the barge was not ready so that he could do the work by that day, then he was to have a- reasonable time for doing it after it was in readiness to receive the machinery. This,we think, is the proper construction of the contract. But it is claimed by the learned counsel for the defendants, that the time for completing the work was absolutely fixed by the parties; and if the barge was not ready for the machinery a reasonable period before the 1st day of April, to enable Sheriffs to place the machinery bv that time, that then he was released from performing the contract on his part. But we deem this construction of the contract quite inadmissible, for reasons suggested by plaintiff’s counsel.
In the first place, there is an absolute undertaking on the part of Sheriffs to furnish all the material, and construct and set lip in the barge’ in the process of construction all the engines, boilers and other machinery, ready in all respects for use. In consideration of this undertaking the plaintiff agreed to make payments from time to time, amounting on the 1st of March to $17,000. The residue of the contract price, to wit, $5,500, was to be paid when the contract was fully performed. These payments were independent agreements, and Sheriffs could insist upon their being made as specified whether he had
This argument is founded on the clause which we have quoted, and another clause which provides that in case the barge shall be ready and Sheriffs shall fail to complete and set up the machinery therein ready for use by the 1st day of April, then he should pay such damages to the plaintiff as it might sustain by reason of such failure. Prom these clauses it is argued that because Sheriffs expressly made himself liable 1'or damages arising from his failure to perform by the 1st of April, providing the barge was seasonably ready to receive her machinery prior to that date, this clearly repels the inference of further liability for any other default. And as it is averred that the barge was not ready long enough before the 1st of April so that Sheriffs could have completed his contract by that day, therefore he is not responsible for failure to do the work within a reasonable time after it was ready. But we do not think this position is sound. ¥e agree with plaintiff’s counsel that the clause in question was not intended to relieve Sheriffs from liability if he failed to perform. It refers to one
It is unnecessary to observe that the plaintiff could not maintain a claim for damages for a failure to complete the work which was occasioned by its own default. But we are not called upon to consider the rule of damages now. We have only to determine whether the complaint states facts, which, being proven, would entitle the plaintiff to recover any damages. And upon that.'point we are clear that a cause of action is stated. This is certainly so, unless we can say that Sheriffs, under the contract, might decline or refuse to do the work at all if the barge was not ready in time so that he could place the machinery therein by the 1st of April. But for the reasons already stated we think this could not have been the intention of the parties, and that the contract should not be so construed. Without noticing any other question in the case, we must reverse the order of the circuit court sustaining the demurrer, and remand the cause for further proceedings.
By the Court. — So ordered.