¶1In the year 1896 defendant Jaeger undertook the construction of a waterworks plant for the town of Greenville, Miss., and in March of that year made a contract in writing with the Knowles Steam Pump Works of New York for the necessary pumps to be delivered E. O. B. at *241Greenville and for the price of $2,195. The agreement was that the pumps should lift 1,400 gallons of water per minute.
¶2"When the pumps were put in place it was found, on a test then made, that they did not have the capacity called for by the contract. Thereupon in September, 1896, the pump company addressed a written proposal to defendant, offering in effect to put in larger pumps of a certain pattern, provided, however, defendant would release the company from damages on the original contract. According to defendant’s evidence, he declined to accept this supplemental agreement except with the understanding that the pumps should be furnished ready to set up at Greenville within thirty days after said new contract should be made, and with this understanding defendant accepted tbe proposal. And this, according to the testimony of defendant and the mayor of Greenville, the pump company’s agent in charge of the matter agreed to, though a stipulation to that effect was not incorporated in .the written proposal. The agent for the pump company testified at the trial and denied that he agreed to any such limit of time. The pumps were not furnished until more than two months after the new or supplemental agreement was 'entered into. By reason of this delay the evidence shows that defendant was put to much extra expense, was unable to close up the work and settle with the Greenville authorities and get his pay, etc.
¶3During the progress of the work defendant paid the pump company several amounts, so that on the original contract price there only remained a balance of $374, and the plaintiff here brought this action on said balance of account as an assignee thereof. The defense was based on the failure of the pump company to furnish the machinery within the thirty days, by reason of which default defendant suffered damages which he claimed should go to reduce or recoup plaintiff’s alleged balance of account.
¶4On a trial by jury there was a verdict and judgment for defendant and plaintiff appealed.