Gabler v. McChesney

Adams, P. J.: The only questions discussed by counsel, and consequently the only ones to be reviewed upon this appeal, are, first, was there a contract binding the defendant to pay demurrage; and, second, did the action of the State authorities, in removing the plaintiff’s boats from the defendant’s dock, relieve the defendant from the obligation to pay demurrage after such removal, provided any contract to pay the same ever existed ? It is- insisted by the appellant’s counsel that the contract under which the lumber in question was forwarded to the defendant was embraced in “ Exhibit A,” and that inasmuch as that contract is altogether silent upon the subject of demurrage, no* foundation is furnished for the plaintiff’s claim. In submitting, this contention, however, it is conceded by the learned counsel for the appellant that if the instruments which were subsequently issued and which are designated in the record as Exhibits “B” and “0,” embraced the contract between the parties, the defendant is liable to pay demurrage at the rate of five dollars per day for each of the plaintiff’s boats, while, upon the other hand, it is claimed that if the instrument finally executed and designated as Exhibit “D” correctly sets, forth the contract he is liable to pay demurrage, but at the rate of only five dollars a day for both boats. Precisely why these different instruments or bills of lading should have been made out and executed as they were is not satisfactorily explained. Nevertheless, it does appear that upon the morning after the arrival of his boats at Syracuse the plaintiff , personally notified the defendant of their arrival, and at the same timé delivered to him Exhibits “ B ” and “ 0,” which the defendant received, and after comparing them with the duplicates which he had theretofore received from the consignor, informed the plaintiff that he would unload the boats as soon as he could. In these circumstances it is immaterial whether or not these particular exhibits were, strictly speaking, the actual bills of lading under which the lumber was transported. They purported to be such and they certainly were contracts of some nature which not only recited the terms of the affreightment, but also contained a stipulation for demurrage after the expiration of three days allowed for unloading, and by accepting the lumber, with knowledge of the [588] contents of these instruments, the defendant within well-settled rules recognized them as binding contracts which defined the rights and liabilities of the several parties thereto, and he cannot now be heard to say they are not in force and effect what they purport to be- (Van Etten v. Newton, 134 N. Y. 143; Germania Fire Ins. Co. v. M. & C. R. R. Co., 72 id. 90 ; 9 Am. & Eng. Ency. of Law [2d ed.], 228.) . Adopting this view, as we feel constrained to do, it follows that ■these were contracts by the terms of which the defendant was liable •to pay such demurrage as was therein specified, provided it is made to appear that the plaintiff performed his part of the contracts and that the defendant, in unloading the boats, consumed a longer time than that specified therein. As-regards the second proposition, it is urged by the defendant that, inasmuch as it was the vis major of the State, without the consent of either the plaintiff or the defendant, which prevented the latter from unloading his lumber until the opening of navigation in the spring of 1898, the contracts - were suspended during the intervening time, and that the defendant was consequently excused for their non-performance. This contention is one which we should be inclined to favor, if the contracts in question contained no stipulation as to demurrage (Scholl v. Albany, etc., Iron & Steel Co., 101 N. Y. 602); but the rule has long obtained that where, as in this case, there is an express provision for demurrage, parties must be held strictly to the terms of their contract; and that in general no excuse is available for any delay, from whatsoever cause arising,, which is not stipulated in the contract. (Cross v. Beard, 26 N. Y. 85.) However, in the view which we take of the case it is not necessary to discuss this feature of it or to definitely pass upon the correctness of the defendant’s contention, for even if wholly untenable, we are yet of the opinion that for another reason the contracts were suspended, and that in consequence thereof the plaintiff is not entitled to. recover. A contract of demurrage is a legal contract and one which must be construed and determined upon strict legal principles. This being so, it becomes important to examine a little more carefully into the terms of the contract upon which the plaintiff rests his claim. By reference thereto it will be seen that the lumber [589] transported by the plaintiff’s boats was to be delivered to the defendant “ alongside ” of his dock at the city of Syracuse. And this, as found by the trial court, was one of the requirements of the contract. Undoubtedly the plaintiff himself so understood it for he does not claim to have been in readiness for unloading until his boats were at the defendant’s dock. This dock, therefore, was the place where the contract was to be finally consummated; it was where the lumber was to be unloaded, and where the plaintiff’s right to demurrage was to accrue, if at all. The defendant could not, under the contracts, have required the plaintiff to unload his boats at some distant dock, nor could the plaintiff have compelled the defendant to accept his lumber at any other place than that specified in the contracts. When, therefore, the plaintiff’s boats were removed from the defendant’s dock, in consequence of which the latter was required to accept his lumber at a point about two miles distant therefrom, we think he had the right to treat the contracts as suspended and to regard his obligation to pay demurrage thereunder as terminated; for it is a principle of law too well settled to admit of discussion that, in the construction of contracts, where it appears that the obligation of performance by one party is to be preceded by the doing of some particular act or the performance of some particular duty by the other, the neglect, refusal or omission to do such act or perform such duty dispenses with the obligation of performance by the former. (Mansfield v. N. Y. C. & H. R. R. R. Co., 102 N. Y. 205.) Within this principle, it was incumbent upon the plaintiff to deliver his cargoes at the place specified in the contracts, and as he did not do so or offer to do this at any time after the expiration of the three days’ limit, we fail to see upon what theory he can maintain this action. (9 Am. & Eng. Ency. of Law [2d ed.], 248.) It follows, therefore, that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide event. All concurred. Judgment reversed and new trial ordered, with costs to appellant to abide event. [590] Action No. 2. The head note for this opinion appears on page 583, ante. Appeal by the defendant, George H. McChesney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 11th day of December, 1900, upon the decision of the court rendered after a trial at the Oneida Special Term pursuant to stipulation. F. B. Gill, for the appellant. James B. Jenkims, for the respondent. Adams, P. J.: This action arose out of the same transactions referred to in a former action between the same parties (Action No. 1) and the stipulated facts are substantially the same, with this exception : The ■ plaintiff’s boats remained at the point where they were taken by the Superintendent of Public Works until the opening of navigation in the spring of 1898, when they were returned to the defendant’s dock. They reached the dock on the ninth day of May, and were unloaded before noon on the fourteenth of that month. In the meantime, and upon the twelfth day of May, there was a break in the Erie canah and navigation was, in consequence thereof, suspended until the twenty-fourth day of May, upon which date the boats left the defendant’s dock. The present action was commenced on the 20th day of June, 1898, and judgment was demanded for demurrage amounting to the sum of $800. The trial court refused to allow any portion of this demand for demurrage accruing prior to the ninth day of May, when the boats were returned to the defendant’s dock, and to such refusal no exception is taken by the plaintiff. But demurrage was allowed at the rate of five dollars per day for each boat from the ninth until the twenty-fourth day of May, the day the break in the canal was repaired. As already stated, the unloading of the boats was completed on the fourteenth day of May, at which time the defendant’s liability for demurrage under the contracts terminated; and whatever deten [591] tion occurred subsequent to that date was the result of a cause for which the defendant was in. no wise responsible. Had there been sufficient water in the Syracuse level to have floated the plaintiff’s boats on the fifteenth day of Hay, it is reasonable to assume that he would have taken advantage of it, and had he done so of course it would not be claimed that he would have been entitled to demurrage for that or any subsequent day. Upon what principle, therefore, it can be successfully contended that, because there was not sufficient water to float the plaintiff’s boats, the defendant is liable under his contracts, we confess ourselves unable to discover. It appeared in the other action that the defendant had availed himself of the three-day privilege under his contracts prior to the 9th day of Hay, 1898, and consequently he was doubtless liable to pay demurrage for every day occupied in unloading the boats after they were returned to his dock. As we have seen, five days were consumed by the defendant in the process of unloading, and for that period of time, but for no longer, we think the plaintiff is entitled to recover at the contract fate; and unless he is willing to accept that sum there must be a new trial of the action. Judgment reversed and new trial ordered, with costs to the appellant to abide event, unless the plaintiff consents to modify the judgment appealed from by reducing the amount of his recovery to fifty dollars, with interest thereon from the 20th day of June, 1898, in which event the judgment, as thus modified, is affirmed, without costs of this appeal to either party. All concurred. Judgment reversed and new trial ordered, with costs to'appellant to abide event, unless the plaintiff stipulates to modify the judgment appealed from by reducing the amount of his recovery to fifty dollars, with interest thereon from the 20th day of June, 1898,'in which event the judgment, as thus modified, is affirmed, without costs of this appeal to. either party.