Byrne v. Weeks

Denio, Ch. J.

By the bill of lading, the owner of the canal boat, whose rights are represented by the present plaintiff, admitted the receipt on board of one hundred tons of stove coal, and seventy-eight tons of egg coal, and he agreed to carry it to New York, and to deliver it there to Moore the shipper, or to his assigns, on payment of the agreed freight. This admission and agreement enabled Moore to dispose of the quantity and kind of coal mentioned to any person who chose to purchase them from him, and the defendant became such purchaser in good faith, and for a valuable consideration. The defendant, by such purchase, became entitled as against the owner of the boat, to receive coals of the quantities and kinds mentioned, on the sole condition of paying the freight agreed on. Instead of there being on the boat when it arrived at New York, the quantity of the stove coal represented in the bill of lading, there was only seventy-eight tons of such coal, but there was an excess of the egg coal, beyond that which was represented in the bill of lading, of twenty-two tons. It seems probable that that was a mistake in filling up the paper by which the figures representing the different descriptions of coal were transposed. But it appears that these different descriptions of coals were known in market by the names used, and that the egg coal was of less value than that called stove coal.

When the error was discovered, it would have been very easy to have adjusted the affair without material loss on either side if a conciliatory spirit had prevailed. But each party claimed *661what he considered to be his strict rights, and this led to a controversy, and to a long litigation, in the course of which each has no doubt expended a sum equal to the whole value of the cargo of coals; and after ten years of controversy we are called upon as a court of last resort to determine what were the rights of the respective parties. We think they are as follows: The defendant as the purchaser for value of the bill of lading was entitled to have delivered to him at ¡New York, the quantities and kinds of coals described in that document, and Mr. Fegan was the party on whom that obligation rested. By signing the bill of lading, he enabled Moore, the consignee, to deal upon the faith of the coal being on board, and upon, the duty of Fegan to transport it to the city. The deficiency was in the stove coal; there were only seventy-eight tons of that article, instead of one hundred tons as stated in the bill. The defendant was not obliged to abandon the purchase, and relióse upon his remedy against Moore, and against Fegan. A part performance was practicable, and that the defendant was entitled to, without discharging his claim in respect to the part which could not be performed.

As to the egg coal, there was sufficient on board to. answer the requirements of the bill of lading, and a surplus. He was entitled to his seventy-eight tons, and he was under no obligation to purchase the residue, or to pay freight on that which he did not receive. He waived nothing by claiming and receiving the delivery of that which belonged to him, even though he knew that the entire performance as to the other description of coal could not bo made.

In fact the defendant received nearly fifty tons of the stove coal, and the master refused to deliver any more of that description unless the defendant would receive the whole of both kinds. He morevcr received nearly the whole of the egg coal which the contract called for, the deficiency in that being only two or three tons.

The court adjusted the plaintiff’s claim, by allowing him the freight at the rate agreed on for the coal actually delivered, and charged him with the value of the remainder, which he was bound to, but did not deliver; and gave judgment against the defendant for the balance. This, I think, was correct.

*662The claim for demurrage was properly disallowed. ■ The detention of the boat being shown to be without fault on the part of the defendant, and the time necessary for discharging was wholly due to the default of the plaintiff in not performing according to the exigency of his compact, and to the foolish controversy which ensued, in which hti"was legally in the wrong. The defendant did not detain the boat.

There is no ground for charging the defendant with the balance of the coal on account of his purchasing it at the sale for .non-payment of storage. It was found in the posssion of the owner of a coal yard, who claimed a lien on it for storage, and a right to sell it to satisfy that lien. The purchase under that sale was not a receipt of the coal, under the contract. He paid the amount of his bid. Whether he acquired a good title or not is not now a question.

I think the case was legally disposed of by the superior court, and its judgment must be affirmed.

All the judges concurred, except Btkowm, J., absent.

Judgment affirmed, with costs.