
    Third Department,
    November, 1912.
    Glens Falls Machine Works, Appellant, v. Orville C. Robinson and Courtland T. Robinson, Respondents.
    
      Contract—construction of machine—joint account.
    
    Appeal by the plaintiff from a judgment of the Supreme Court, entered in the clerk’s office of the county of Warren on the 81st day of January, 1912, upon the decision of the court rendered after a trial before the court without a jury, dismissing the plaintiff’s complaint upon the merits.
   Houghton, J.:

We think the learned trial court placed too strict a construction upon the contract between the parties. The machine which the plaintiff agreed to construct from a model had been recently patented, and it was not known whether it would be a practical success or not. The building of it was in effect a joint venture of the plaintiff and the defendants. If it was a success, all parties expected to make a large amount of money. If- it was not a success the defendants agreed to pay the plaintiff $200, which turned out to be about twenty-ñve per cent of the cost. It was a failure, and in its building and attempted operation the defendants made suggestions and acquiesced to a greater or less extent respecting the manner of its construction. The principal deviation from the model claimed is that the rollers were of equal instead of unequal diameter; This was a very minor affair and could have been easily corrected if any one had suggested that that was the reason why the machine did not operate as. expected. The judgment should be reversed upon the facts and a new trial granted, with costs to the appellant to abide the event, the particular questions of fact of which the court disapproves being those numbered 20 and 21. All concurred. Judgment reversed upon the facts and new trial granted, with costs to appellant to abide event. The particular findings of fact of which the court disapproves being , those numbered 20 and 21.  