
    No. 818
    BOBB v. BOBB & SONS CO.
    Ohio Appeals, 4th Dist., Franklin County
    No. 1116.
    Jan. 25, 1924
    297 CONTRACTS — Delay in performance by building contractor held excused by default on part of owners in payment of installments.
    Attorneys — Wilson & Rector, for the La-tham Co.; Edward C. Turner, for receiver; all of Columbus.
   KUNKLE, J.

Epitomized Opinion

Published Only In Ohio Law Abstract

This was a case of receivership in which the E. H. Latham Co. filed an intervening petition seeking to have their claim allowed for $8,276.98 as the balance due on a contract which they had with the George Bobb & Sons Co., defendant. By the terms of the contract the Latham Co. was to construct a large building for the Bobb Co., the work to be completed by Sept. 1, 1920, and if not so completed the Latham Co. was'to pay to the Bobb Co. as liquidated damages $100 for each and every day the work remained uncompleted after Sept. 1, 1920. The work Was not completed until Nov. 17, 1920. The receiver, in answer to the intervening petition, filed a counterclaim for damages for the delay in completion. The Lathan Co. as an excuse for the delay alleged that the Bobb Co. failed to give possession of the premises soon enough to permit the beginning of excavation in time; that the Bobb Co. made numerous defaults in their monthly payments required by the contract, thus disabling the Latham Co. from purchasing material and meeting their payroll; and that weather conditions, strikes and shipping delays likewise interfered. The Common Pleas rejected the claim of the La-tham Co., which appealed to the Court of Appeals. Held:

This court finds from the record that the allegations of the Latham Co. given as excuse for the delay in completing the building • are true. The Bobb Co. was chiefly at fault in not making monthly payments promptly as agreed and, as a result, the Latham, Co. was greatly hindered. These defaults in payment are a good defense to the receiver’s claim for liquidated damages. The delay in performance was reasonably excused. The Latham Co.’s claim should be allowed and the claim of the receiver for liquidated daniages should be dismissed. Decree accordingly-.  