Stephens v. Phoenix Bridge Co.
| Decision Date | 10 June 1905 |
| Docket Number | 226. |
| Citation | 139 F. 248 |
| Parties | STEPHENS et al. v. PHOENIX BRIDGE CO. |
| Court | U.S. Court of Appeals — Second Circuit |
L Laflin Kellogg, for plaintiff in error.
Henry G. Ward, for defendant in error.
Before WALLACE, TOWNSEND, and COXE, Circuit Judges.
This is a writ of error by the defendants in the court below to review a judgment for the plaintiff entered upon the verdict of a jury. The action was brought to recover the reasonable value of the materials and labor furnished by the plaintiff for a viaduct which the defendants were erecting for the city of New York upon a written contract between them and the city. It appeared upon the trial that the materials and work were furnished under a contract between the parties by which the plaintiff undertook to complete the metal work of the structure at a specified date, and 'to be subject to a penalty of one hundred dollars per day for any time beyond that day,' and by which defendants undertook to pay as the work progressed, upon monthly estimates, reserving 15 per cent. of the contract price, which was to be paid within 60 days after completion, part in cash and part in four months' notes of the defendants. Performance was not completed by the plaintiff within the time specified by the contract, but full performance otherwise was subsequently made, and the defendants accepted the work and paid all sums due by the terms of the contract, except the reserved payment, which amounted to $13,960, less $4,000 owing to the defendants for the use of their plant and other assistance. It was not disputed upon the trial that the reasonable value of the labor and materials was the contract price, but the defendants contended that, the contract not having been performed by the plaintiff within the specified time, the plaintiff was not entitled to recover, and that in any event the defendants were entitled to a deduction of $100 per day for the delay. The trial judge ruled against these contentions, and allowed the defendants to prove the amount of their actual damages caused by the delay.
The only assignments of error that require notice are those which challenge the rulings of the trial judge that the plaintiff was entitled to maintain the action notwithstanding it had not fulfilled the terms of its special contract with the defendants; that the defendants were entitled by way of counterclaim only to the actual damages sustained by them by the delay in the completion of the contract, and not to the $100 per day mentioned in the contract; and that the plaintiff was entitled to interest upon any amount which the jury might find to have been owing by the defendants to the plaintiff from the time when the demand became payable. These assignments of error may be briefly disposed of.
1. It is entirely well settled that an...
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Northwestern Terra Cotta Co. v. Caldwell
... ... failure to furnish any turbines and of the failure to furnish ... Stephens ... v. Phoenix Bridge Co., 71 C.C.A. 374, 139 F. 248, was a ... suit under a contract by the ... ...
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Storey & Fawcett v. Nampa & Meridian Irrigation District
... ... N.Y.S. 911; Illinois Surety Co. v. United States, ... 215 F. 334, 131 C. C. A. 476; Stephens v. Phoenix Bridge Co., ... 139 F. 248, 71 C. C. A. 374.) ... "The ... claim of the ... ...
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Robertson v. Miller
... ... commencement of the action, or, in other words, where the ... damages are unliquidated. Stephens v. Phoenix Bridge ... Co., 139 F. 248, 71 C.C.A. 374. But this court has held ... that in cases ... ...
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B.F. Sturtevant Co. v. Champion Fibre Co.
... ... v. United States ... (C.C.A. 4th Cir.) 215 F. 334, 340, 131 C.C.A. 476; ... Stephens v. Phoenix Bridge Co. (C.C.A. 2d Cir.) 139 ... F. 248, 250, 71 C.C.A. 374. The question of ... ...