Defendant appealed. J. The plaintiffs placed their schooner, "Melville," on the marine railway of the defendant at Washington, N.C. to be caulked and otherwise repaired. They allege in their complaint that the work was so defectively done that on the voyage the vessel leaked, and the water, finally coming into contact with some barrels of lime which were in the cargo, set fire to the vessel, which was thereby burned. This action is to recover the value of the vessel and cargo.
If the repairs were defectively made, so that the vessel leaked, the damages were the cost of having the defects repaired and interest on the value of the plant (the vessel) and hire of employees, and the like(Sharpe v. R. R., 130 N.C. 613; Tompkins v. Cotton Mills, ibid., 347;Mills v. R. R., 119 N.C. 693), during the additional delay thus caused. This direct damage might have been set up as a defense to the action by the defendant in which it recovered of the plaintiffs its charges for making such repairs, and the defendant pleads such judgment as a bar to this action. The plaintiffs contend that this is a counterclaim, which it was optional with them to plead. It seems to us that while (113) the damages now sued for, if valid, would be a counterclaim, the foundation for them is taken away by the adjudication in the other action that the defendant had performed its contract.
Aside from that, there is no evidence and no allegation that the defendant had notice that the vessel was to be used for carrying lime, nor, indeed, that this was its purpose. The evidence is that four barrels of lime were taken on board among the cargo. It was a remote and not a direct consequence that the water from the leak reached them and set fire to the vessel. The captain testified that he could have saved the vessel except for the fire.
The burning of the vessel from the leak was not in the contemplation *Page 93 of the parties. Even if the vessel had been sunk by the leaks, it was incumbent upon the plaintiffs to allege and to prove that they used due diligence, but did not and could not discover that the work was defective so that the vessel would leak until too late to avoid that consequence. R.R. v. Hardware Co., 143 N.C. 57. The complaint does not aver this, but on the contrary says that the plaintiffs relied on the defendant and had "no knowledge of the breach of duty and violation of contract" by the defendant. To start a vessel on a voyage upon that assumption, without inspection or trial — for none is alleged — was such gross negligence on the part of the plaintiffs as makes that the proximate cause of the disaster. The captain of the vessel, a witness for plaintiffs, testified that he knew the vessel was leaking before he sailed and when he took the four barrels of lime aboard.
In refusing the motion to nonsuit there was
Error.