Sire v. Ellithorpeco

• Decision Date: 05 January 1891
• Docket Number: AIR-BRAKE
• Citation: 137 U.S. 579,34 L.Ed. 801,11 S.Ct. 195
• Parties: SIRE v. ELLITHORPECO
• Court: U.S. Supreme Court

137 U.S. 579

11 S.Ct. 195

34 L.Ed. 801

SIRE v. ELLITHORPE AIR-BRAKE CO.

January 5, 1891.

Chauncey Shaffer, A. I. Sire, and J. Hubley Ashton, for plaintiff in error.

Samuel Ashton, for defendant in error.

BLATCHFORD, J.

This is an action at law, brought in the circuit court of the United States for the southern district of New York, by the Ellithorpe Air-Brake Company, an Illinois corporation, against Henry B. Sire. The plaintiff is engaged in the business of constructing elevators and putting them into buildings. The complaint sets forth a contract between the plaintiff and the defendant for the plaintiff to furnish and erect for the defendant two hydraulic passenger elevators, and two safety steam passenger elevators, in buildings in the city of New York, in 80 to 90 days from the date of the receipt of approved plans, for $6,750, one-half to be payable when the machines were in the buildings, and the other half when the elevators were in running order, with a provision that, if the defendant should delay the paintiff in shipping or erecting the elevators, then both of the payments should be due on the date named for completion, and that any deferred payment should bear interest. The complaint further alleges that the plaintiff caused the elevators to be constructed, ready for shipment, within the time specified, and to be set up, in running order, in the buildings, in accordance with the contract; that the two hydraulic elevators were duly shipped, and within the time specified the machinery was placed in the buildings, and one of them was set up in running order, and the other one was very nearly set up, when the plaintiff and its workmen were stopped and prohibited by the defendant from further proceeding with the work; that, after the two safety steam elevators were ready for shipment, and were about to be shipped, the defendant requested the plaintiff not to ship them, as he was not ready for them, and desired to make some changes, and he directed it to hold them in store until further orders from him, all of which the plaintiff caused to be done; that the defendant refused to accept the same or permit the plaintiff to ship them or set them up; that the plaintiff is and always has been willing to carry out its agreement to furnish and erect all of the elevators; that the defendant has refused to permit the plaintiff to perform its contract, or to allow the elevators to be erected, or to make the payments therefor, except the sum of $1,900 on account; that, in consequence, the elevators have become wholly lost to the plaintiff, and it has sustained damage to the amount of $6,750, and the interest thereon, no part of which has been paid, except the $1,900; that the plaintiff has sustained additional loss by way of special damage, and has been compelled to employ extra workmen, and to do extra work and labor in the buildings, and to incur other expenses, amounting to $2,500, to the damage of the plaintiff in all of $7,000, for which amount, with interest from the commencement of the suit, it asks judgment.

The answer of the defendant sets up a general denial, except that he admits that he has paid $1,900, and avers that the contract between the parties, in respect to the four elevators, was in writing, and that the plaintiff has failed to perform the provisions of the contract, while the defendant has obsered them. It also sets up a counter-claim, and claims $6,000 damages for the failure of the plaintiff to perform the contract, alleging that by...