Stephens

The action is for the balance due for the construction by plaintiffs of a gasoline launch under an ex press contract requiring the payment by defendant of the sum of $1,550 and providing that the launch should be completed on June 1, 1914. The boat was not ready on time but was accepted by defendant, which claimed, however, that it was entitled to a rebate or recoupment in consequence of the damage caused by the delay. It was, though, found by the court that there was a waiver of any such claim and the real controversy revolves around this consideration. The basis for the court’s conclusion is found in these facts: “Defendant, with knowledge of the fact that said launch would not be completed in the time specified by said contract, did not insist upon any penalty from plaintiffs but urged them to rush said launch to completion. That plaintiffs did rush said launch to completion. During the period prior to August 8, 1914, in which payments were made as hereinafter set forth, defendant did not at any time threaten plaintiffs for any penalty for their failure to deliver the boat on time, but rather urged plaintiffs to complete the boat as soon as possible ; that plaintiffs did…