The important chronology of this case is confined to the year 1893.
The Cowles Engineering Company agreed in writing to construct a steamer for the Interstate Steamboat Company for $50,000.00 to be completed by August 22d; the contract further provided that if the steamer should not be completed within two months after August 22d, the Interstate Company might accept or reject her upon completion, receiving $100 a day as damages if accepted and the money paid on contract if rejected. The Cowles Company did not complete the steamer by August 22d, and on August 30th made a general assignment for the benefit of its creditors.
On or about the 15th of October the Interstate Company took possession of the steamer, towed her into another jurisdiction and completed the work of construction. The Interstate Company received a bond from the Cowles Company for the faithful performance of the contract, and now seeks, by its assignee of the cause of action, to recover damages. *Page 450
The record discloses that the Interstate Company had paid $42,000.00 on the contract prior to the general assignment of the Cowles Company, and the question is whether it was damaged after completing the boat. As the complaint was dismissed, the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence, and to all inferences warranted thereby.
The plaintiff's proofs show that the Cowles Company never completed the steamer, and that the Interstate Company did; that the Interstate Company did not take possession until about a week before October 22d; that the steamer was not launched until August, but her boilers were not on board, and there was nothing above the hull; that there were parts of the boat in the shops of the Cowles Company, brass works, portions of the rudder, the tiller wheel, the brass fittings; that the boilers, brass fittings and other things were sold by the sheriff of Kings county, and the Cowles Company did not buy them.
The fair inference from all this proof, in addition to other facts, is that the steamer was not completed by the Cowles Company, or its assignee, and that neither intended to do so; that it would have been impossible to complete the contract during the time between the Interstate Company taking possession and October 22d — about a week.
I think the Interstate Company, through the plaintiff, should have been allowed to prove such damages as it had suffered, if any, subject to the defenses the Cowles Company, or its assignee, might interpose and establish.
I favor affirmance.
PARKER, Ch. J., HAIGHT and VANN, JJ., concur with MARTIN, J., for reversal.
GRAY and O'BRIEN, JJ., concur with BARTLETT, J., for affirmance.
Order reversed, etc. *Page 451