#### Vanderbilt vs. The Eagle Iron Works.

The act relative to *incorporations for manufacturing purposes,*passed 26 January, 1821, is not limited in its operation to five years after its passage, but is an absolute act, in force, until it shall be repealed.

Where the payment of money depends upon the doing of work in a particular manner, and the work is done, though not in the manner stipulated, but is accepted and reduced to use by the party for whom it is done, he cannot in an action against him for the price, insist upon the deficiency as the nonperformance of a *condition precedent ¡*all he can claim is a *reduction*for the part left unperformed, The party ip such case is deemed to have *waived*the condition.

Error from the superior court of the city of New-York. The Eagle Iron Works brought an action of *debt*against Vanderbilt, and declared on an agreement, under seal, entered into by the parties, bearing date 8 March, 1838, whereby the plaintiffs obligated themselves to manufacture and put *508up on board of a boat to be built by the defendant, a low pressure *steam engine*similar to the engine of the steamboat Clifton, belonging to C.

Yanderbilt, and also to *furnish all braces*for king posts, &c.— [ *666 ] the whole to be constructed to the *aatisfaction of the defendant, and the engine to be ready for operation within one month after the defendant’s boat should be launched. The defendant on his part agreed to pay to the plaintiffs the sum of $10,500 in three instalments, to wit: $3,500 on signing the agreement, $3,500 when the engine should be put in operation on the boat, and $3,500 within 90 days after the engine should be put in successful operation and found to be in conformity to the contract. The suit was brought for the recovery of the last instalment. The defendant pleaded *non est factum,*and sundry special pleas.

On the trial of the cause the plaintiffs produced from the office of the secretary of state a certified copy of a certificate filed by them on the 25th January, 1837, stating that they had *formed a company for manufacturing purposes,*pursuant to the statute in such case made and provided, by the corporate name of *The Eagle Iron Works,*for the purpose of manufacturing from the ore, bar-irons, mill-irons and iron-mongery. The defendant objected that the act under which the incorporation took place was passed before the adoption of the new constitution, subsequent to which no act had been passed giving a charter to the plaintiffs, and that therefore the incorporation of the plaintiffs was void. The court overruled the objection. The plaintiffs then proved that they constructed the engine, and put it on board the *Wave,*a steamboat owned by the defendant, and that it was put in successful operation on the tenth or *twelfth day of July,*1838; that the defendant was on board and approved the work. On the part of the defendant it was proved that the *Wave*was launched on the tenth or *twelfth day of May,*1838; that the engine of the steamer *Clifton*had *braces to the connecting rods,*and the engine of the *Wave*was *deficient*in that respect, and that the cost of such braces was from $75 to $100. The defendant insisted both *before*and *after*the machinery was put in the boat, that the braces to the connecting rods should be furnished. The defendant proved payments made by him on the contract to the amount of $7,900.60. The judge charged the jury that it seemed that [ *667 ] the only deficiency in the performance of the contract *on the part of the plaintiffs was the omission to supply the connecting rods, or braces to the connecting rods; but that such omissions was no objection to the plaintiff’s right to recover, if they should find that the defendant had permitted the engine to be put on board the boat, had accepted it as his property, and continued to use it as his own ; that in such case, he must be deemed to have waived the furnishing of the rods as a *condition precedent*to the plaintiffs’ right of recovery, and only to have *509insisted upon a subsequent performance or compensation for the omission; and if they should find that the machinery was deficient in respect to the connecting rods, they must deduct the value thereof from the amount they should find due to the plaintiffs. The jury found a verdict for the plaintiffs, certifying the amount due to be $2,957.17, upon which judgment was entered. The defendant, having excepted to the decisions and charge of the court, sued out a writ of error.

*L. Sherwood,*for the plaintiff in error.

*D. D. Field,*for defendant in error.

*By the*Court,

Nelson, C. J.

The first general act authorizing associations to be formed into corporate bodies- was passed 22 Mrrch, 1811, and was limited to five years. It was continued to 1 May, 1817, by the act of 29 March, 1816, when it expired; but was again revived for five years by an act passed March 31, 1818 ; and on the 26th January 1821, an act was passed declaring that it “ *he hereby received and continued in full force and operation, any thing contained in any other law to the contrary notwithstand*ing.” See all the acts on the subject, collected 3 *R. S.*220 to 224. It is supposed by the counsel for the plaintiff in error, that this act in effect only extended that of 1811 to January, 1826, and that it then expired and has not been since in force. The argument is, that the five years limitation was incorporated in the original act of 1811, and formed an essential part of it, and that the simple revival necessarily included, embraced and carried it along with the other provisions ; *and hence must ex- [ *668 ] pire at the expiration of that period by its own limitation. The course of legislation on the subject, I think, fairly refutes this view. The several acts reviving the act of 1811, down to the one in question, were passed by the legislature obviously upon the supposition that an absolute revival would extend it indefinitely, and hence each of them contains a limitation as to time. The act of 1821 is alone absolute and unlimited in this respect, and was undoubtedly designed to give full force and operation to the original law of 1811, until repealed. Such has been the uniform understanding and usage under it.

Whether the acceptance of the engine by the defendant on board his boat, and continued use and enjoyment of it as his own for the purposes for which it was to be deemed, under the circumstances, a *waiver*as to furnishing the braces as a condition precedent to the payment of the money, was properly left to the jury; and their verdict is conclusive upon the question. Indeed, we do not see how any other conclusion could well be arrived at. Granting that the defendant insisted, both before and after the delivery of the engine, *510that the braces must be furnished, it by no means necessarily follows that he intended thereby to indicate that no money would be paid till then, according to the contract; all that can be fairly implied is, that he meant to hold the plaintiffs accountable for them, and did not by accepting intend to waive the right to call for the article. After the acceptance and use, under the circumstances detailed in the case, it would require a very positive and specific reservation of a precedent condition, to preserve it with all its technical and penal consequences.

Judgment affirmed.