
    Frederic B. Vandegrift, Appellant, v. The Cowles Engineering Company and Others, Respondents.
    
      Contract for the building of a boat to be completed at a certain time—imposition of a per diem penalty for delay — insolvency of the 'vendor — effect of the vendee’s taking the unfinished boat from the assignee of the vendor.
    
    A contract was made by an engineering company with a steamboat company to build and deliver to the latter a steamboat which was to be finished on or before August 22,1893, and to be paid for.by the steamboat company by installments,, the contract providing that if the engineering company should not complete the steamer on or before the 22d of August, 1893, it should forfeit to the steamboat company the sum of §100 damages for each day’s delay, and that, if the steamer should not be completed within two months after that time the. steamboat company might accept or reject her upon completion, and that if it did reject her the engineering company should pay to the steamboat company all sums which the former had received under such agreement.
    The engineering company entered upon the construction of the boat and continued such work until August 30,1893, receiving on account thereof from the steamboat company §42,500, at which date the boat had been launched, but she was never completed by the engineering company, which made a-general assignment on August 30,1893, and the boat, which was then unfinished, passed into the hands of the assignee who had no power to complete the boat, being required ■by the terms of the assignment to sell it and apply the proceeds to the payment of the engineering company’s debts. The boat • remained in the hands of the assignee in its unfinished state until October 9, 1893, when it was taken away by the steamboat company.
    In an action upon a bond given to the steamboat company by the engineering company to secure the performance of the contract
    
      Meld, that, by the terms of the contract, the boat was required to be completed on the 22d day of August, 1-893, that being a necessary inference from the imposition of a penalty for the failure to have .the boat constructed,at that date, although, after that time and until the twenty-second 'of October (two months later), the steamboat company would have been bound to receive the boat if it had been completed and tendered to it;
    
      That, until delivered to the steamboat company, the boat remained the property of the engineering company, and that the title thereto passed to the assignee of the latter company;
    That, upon the execution of such assignment, it then being out of the power of the engineering company (having parted with the title) or its assignee (whose powers over the property were controlled by the assignment) to complete the boat, the steamboat company was at liberty to regard the contract as at an end, and that there arose a right of action in its behalf against the sureties on the bond given by the engineering company;
    That the subsequent taking of the boat by the steamboat company did not operate as an acceptance of her under the contract, but at the most only went to the question of damages.
    Appeal by the' plaintiff, Frederic B. Yandegrift, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16th day of November, 1897, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      Esek Cowen, for the appellant.
    
      Edward B. Whitney and William H. Shepard, for the respondents.
   Rumsey, J. :

On the 3d day of March, 1893, the Interstate Steamboat Company made a contract with the Cowles Engineering Company, by which the engineering company agreed to build and deliver to the Interstate Company a steamboat which was to be finished on or before August 22, 1893. The boat was to be paid for by installments. The contract provided that if the engineering company should not complete the steamer on or before the 22d of August, 1893, it should forfeit to the Interstate Company the sum of $100 a day damages for each day’s delay. It -was further agreed that if the steamer should not be completed within two months after that time, the Interstate Company might accept or reject her upon completion, and if it did reject her, the Cowles Company should repay to the Interstate Company all sums which it had received under the agreement. To secure the performance of this contract the Cowles Engineering Company as principals, and’the defendants Nevins and Tumbridge as sureties, gave their bond to the Interstate Company under penalty of $25,000, conditioned .to be void if the engineering company should well and truly perform the agreement in accordanee with the terms and provisions thereof. The engineering company proceeded to the construction of the boat and continued it until the 30th of August, 1893. Before that time the Interstate Company had paid upon the boat $42,500, and the boat ha'd been launched. She .was never completed by the engineering company. On the 30th day of August, 1893, the Cowles Engineering Company made an assignment for the benefit of creditors, to the defendant Vanix Carter, who took possession, among other things', of the boat which . was then lying in the water unfinished. The assignment to Mr. Carter authorized him to take possession of all the property of the engineering company, and required- him to sell and dispose of it and convert it into money and to use the proceeds to pay the costs and expenses of executing the assignment, and to divide the remainder among creditors of the assignor in a manner more particularly directed in the assignment. Mr. Carter, after taking possession of this boat in its unfinished condition, made no effort to complete -her, but she remained uncompleted until the 9 th day of October, 1893, when the Interstate Company took possession of her and. took her to Philadelphia where she was afterwards completed by that company. The Interstate Company afterwards assigned the bond and the 'cause of action for the failure to complete the boat to this, plaintiff, who brought his action' upon the bond for the amount of the penalty. -At the close of the plaintiff’s case, a motion to dismiss the complaint was made -upon the ground that the title to the steamer passed to the assignee of the Ccwies Engineering Company on the 30th of August, 1893, by the assignment; that the taking of the boat out of the possession of the assignee by the Interstate- Company on the ninth of October, deprived the assignee -of the power of completing the boat, and was, in fact, an acceptance by the Interstate Steamboat Company of the boat as a completed boat in accordance with the terms of the contract and upon the further ground - that there was no evidence of a breach of the contract by the engineering company. This motion was granted by the court, and a dismissal of the complaint was ordered and an exception was taken by the plaintiff. From the. judgment entered upon that direction this appeal is taken. It is claimed by the defendants that, -under the contract, the Cowles Engineering Company had until two months after the 22d of August, 1893, to complete the boat, and that as the Interstate Company took possession of her on the ninth of October, before that two months expired, it had put it out of the power of the engineering company' to finish the boat, and, therefore, it was precluded from bringing this action against the sureties on the bond. It is claimed, on the contrary, by tlie plaintiff that, by the terms of the contract, the boat was to have been completed on the 22d of August, 1893 ; that by the transfer of the title to the assignee for the benefit of creditors on the 30th of August, 1893, the Cowles Company put it out of its own power to complete the boat because it no longer had any title to it, and that the assignee had no power to complete it because such an act was not within the power given to him by the assignment, and, therefore, there was, at that time, a breach of the contract. Such a breach having then occurred, the plaintiff insists that his right of action against the sureties on the bond accrued at that time¿ and, therefore, it was error to dismiss the complaint. ■

It is quite ' clear, we think, that the necessary result of the contract was that the boat was to be completed on the 22d of August, 1893. The agreement was that if the Cowles Company should not complete the, steamer on that day, it should forfeit $100 a day for each day’s delay. That provision of the contract necessarily carried with it an implication that the boat was to have been finished on August 22, 1893. It is quite- true that, by a subsequent provision of the contract, the right to reject the boat for a failure to complete it did not come into existence for sixty, days after the twenty-second of August, and the'only penalty for the failure to complete during the sixty days was the forfeiture of $100 a day, but the requirement to complete the boat arises as a necessary inference from the imposition of a penalty for the failure to have it completed on the 22d of August, 1893. It may be true that after that time and until the twenty-second of October the Interstate Company would still have been bound to receive the boat if it had been completed and tendered to it, but that obligation is a mere matter of grace extended to the Cowles Company by the subsequent terms of the contract and was not strictly an extension of the time in which the boat should have been delivered. However that may be. it is conceded that the Cowles Company did not complete the boat at any time. On the thirtieth of August it transferred all its property to the assignee for the benefit of creditors. At that time it had the title to this boat, which, although made for the Interstate Company and to be delivered to it when completed, had not yet become the property of that company, the boat until it was finally paid for being still the property of the manufacturer. (Andrews v. Durant, 11 N. Y. 35 ; The Poconoket, 67 Fed. Rep. 262; affd., 70 id. 640; 168 U. S. 707.) When the title to the boat was transferred to its assignee for the benefit of creditors, the Cowles Company ceased to have any further interest in it or right to interfere with .it. So far as it was concerned, therefore, there was no power to complete it, because any interference with the boat .after its transfer to Mr. Carter would have been a trespass. The case differs from the case of The New England Iron Co. v. Gilbert El. R. R. Co. (91 N. Y. 153). In that case the New England Iron Company,had agreed to perform certain- work for the defendant upon the defendant’s road, but had made an assignment for the. benefit of creditors, reserving to itself, however, the right to perform this contract. In an action against the elevated railroad' arising out of the contract, the court held.that so long as the New England Iron Company still remained in existence, the mere fact that it had made an assignment for the benefit of creditors, did not, as a matter of law, prevent its performance of an executory contract to do work and labor'upon the elevated railroad. But that case is widely different from this. It is undoubtedly' the law that .the mere fact, of insolvency does not prevent the performance by the insolvent of a . contract to work for another (Matter of Carter, 21 App. Div. 118) ; but the contract in. this case is something more than that. - It involved, the duty of completing the- boat, and that necessarily required the Cowles Company to keep the possession of the. boat and the title, so as to be able to- deliver it to the Interstate Company when it was comqfiete. But by. its transfer to Carter, it not only deprived itself of the possession of the boat, so that it was not able without committing a trespass to do any work upon it, but it expressly required Carter to sell and dispose of all its interest in the boat and to use the money to pay the debts of the company. The result was that the Cowles Company lost the right and the legal ability either to keep possession of the boat or to deliver it to the Interstate Company after it had been completed. The case in that respect is very much like the case of Woolner v. Hill (93 N. Y. 576) in which one who had agreed to make an executory sale of property, having made an assignment for the benefit of bis creditors and transferred the property to that assignee, was held to have disabled himself from the performance of his contract, and to be liable in damages for the failure to perform as soon as, by the assignment, he had transferred the property to his assignee. It is quite true that in the Matter of Carter (21 App. Div. 118), where this assignment was before the court, Mr. Justice .Hatch said that it did not per se, and, standing alone, constitute a breach of the contract for the construction of the steamer. That is undoubtedly the fact. It was quite possible for the Cowles Company to have reserved to itself the right to complete the performance of the contract, as was done by the Row England Iron Company, or to impose upon Carter by its deed the duty of such • ¿ompletion, and. in either case there is no doubt that it still would have the right to finish the work, subject only to the liability for the penalty. But the court in that case expressly declined to say whether the right existed in the Cowles Engineering Company or in its assignee to -complete the construction, so that that question, as it comes here, is an open one, and we are not precluded from an examination of it by anything that was said in that opinion.

It is not very material to consider the powers of the assignee Carter in respect to. the completion of the boat after he had taken possession of it. There is no claim that he made any effort to complete it or had any intention of doing so. Indeed, he had no power to do so. His right to the property was controlled by his deed, and he could only take the property for the purposes mentioned in the deed, and devote it to the use therein prescribed. All he could do was to sell'the interest of the Cowles Company in the boat, and he ' could do nothing further with it. The result is that when the title to the boat had been transferred to Carter, on the 30th of August, 1893, it was out of the power of anybody to complete it, and the Interstate Company was at liberty then to regard the contract as at an end. At that time there arose in behalf of the Interstate Company a cause of action against these sureties for the failure to complete the boat."

It was claimed on the trial that the subsequent taking of the boat by the plaintiff’s assignor operated as an acceptance of her under the contract, but that claim is not insisted-upon upon the argument, and is obviously 'not well founded. If that taking had any effect upon the rights of the sureties, it was only as a defense to the cause of action which then existed against them. • "Whether it had any such effect as that is not necessary to consider. At the most it. only went •to the question of damages.

For these reasons the judgment must be reversed and a new trial ■ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred. .

Judgment reversed and new trial ordered, with costs to appellant' to abide event.  