Dressler-Beard Mfg. Co. v. Winter Garden Co. , 158 N.Y.S. 875 ( 1916 )

WHITAKER, J.

On February 3, 1914, defendant gave plaintiff an order to construct a model of “A Growing Airship through a Projectorscope.” The purpose of the machine, when completed, was to throw upon a screen a picture of an approaching and receding airship. The inventor of the device was Thomas A. Morris. The apparatus to be made by the plaintiff was simply a model. It was not for actual use, and plaintiff was building it under the instructions and in accordance with experiments tif Thomas A. Morris, who was in the employ of the defendant.

[ 1 ] The record shows that plaintiff proved its case, and the evidence of the defendant does not disprove it. Defendant’s only witness practically admits the model was completed in accordance with instructions. There was a question as to the place of delivery. Plaintiff’s witness swore positively that it was to be delivered in its place. Defendant’s witness was not sure as to the place of delivery. In the absence of proof of an agreement to the contrary, the place of delivery would have been plaintiff’s place of business where the model was made.

. [2,3] Defendant claimed that the machine was to be completed within three weeks, and that time was the essence of the contract. I can find nothing in the evidence that specifically required the machine to be completed within three weeks. The plaintiff in its letter (Plaintiff’s Exhibit 2) proposing to build the machine simply stated" that:

“He expected to start the model at once and finish within three weeks’ time from receipt of order.”

Defendant in its letter of acceptance of the proposition makes no mention of time within which the machine was to be finished. As matter of fact, the machine was used for the experimental purposes contemplated by the parties, and was actually tested by the defendant after it was completed, and the inventor, Morris, found it would not work; and the evidence of the plaintiff was that it was finished about the first part of May. It appears to me from the whole case that plaintiff duly performed its part of the contract, and that defendant did not establish a good defense, and did not sustain its counterclaim.

The judgment should therefore be reversed, with $30 costs, defendant’s counterclaim dismissed, and judgment ordered for the plaintiff for the amount demanded in its complaint, with costs in the Municipal Court. All concur.