By the Court,
B. Darwin Smith, J.The first objection of the defendants’ counsel to the plaintiffs’ right of recovery in this action, that they had no valid or subsisting lien upon the vessel at the time of its seizure, I think is not well taken. The plaintiffs’ claim was for work done and materials furnished for or towards the building, repairing, fitting, furnishing or equipping such ship or vessel. If the plaintiffs establish such debt, it is expressly made, by the statute, a lien upon such ship or vessel, her tackle, apparel and furniture. (2 R. S. 3d ed. 587, § 1.) If the judgment in favor of the plaintiffs is right upon the merits, it necessarily includes and sustains the lien claimed upon the vessel. The work was confessedly done, as the referee finds, upon a special contract for the price of $300, and the repairs were complete and the work accepted on the 12th December, 1856. The questions in dispute relate chiefly to the time of performance and the counter-claim of the defendants. The referee finds that no definite time was fixed by the contract for the *36completion of the work; but he also finds that with reasonable diligence the work might have been completed by or before the 29th of November, 1856. The acceptance of the work without objection, after the expiration of the time within which it might have been completed with reasonable diligence, bound the plaintiffs to pay for the same, subject to the right of recoupment or counter-claim for any damages sustained by the non-completion of the work within proper or reasonable time. This finding renders it immaterial whether the referee was right in his finding, upon the facts, that no specific time was fixed by the contract for its completion. If the defendant acquiesced in the delay in completing the work, and accepted the vessel after the time, without objection, he could not afterwards insist that it was not performed in time, as a condition precedent, and refuse payment on that ground ; but he was not cut off from any defense arising from the neglect of the plaintiff to fulfill the contract in time.
The chief question in. dispute relates to the defendants’ recoupment, or claim for damages, by reason of the plaintiffs’ neglect to perform the task within a reasonable time. On this question the referee finds, as matter of fact, that the defendant sustained no damages by the delay of the plaintiffs in completing the repairs pursuant to the contract. This finding is necessarily conclusive, and disposes of the whole defense, unless it is so clearly erroneous that we should feel bound to set it aside as against the weight of the evidence. There is a good deal of evidence on this question, and it is quite conflicting, and we clearly, I think, would not be warranted in overruling this finding of the referee, if no error was committed in receiving or rejecting evidence, or in the rule of law applicable to the question of damages in such cases. The whole controversy in the case, and the only real difficulty at the trial, relates to the rule of damages, upon the assumption that the defendants are entitled to recoup. When the case was before us on a former occasion, it appeared that *37the referee had allowed proof showing what the vessel would earn per day. This we held to be error, (see 20 How. Pr. Rep. 102,) and that the question was what the use of the vessel was worth at that particular season of the year; referring to the case of Griffin v. Colver, (16 N. Y. Rep. 495,) for the true rule. On the re-trial the defendants’ counsel claimed the right, and offered evidence to show what the use of the vessel would have been worth from the 29th November to the close of navigation. This inquiry presented the true question of damages if it sought the value of the charter or rent of such a vessel as such vessel was used or chartered at the time. But the referee regarded the question as presenting simply a speculative opinion, or an inquiry as to probable profits of the vessel, depending upon contingencies too uncertain to form a rule of damages. The language employed in the opinion on the former occasion, in respect to the use of the vessel, was the same language used in Freeman v. Clute, (3 Barb. 424,) without particularly considering how such use was to be estimated ; but it was intended to assert and follow the rule laid down in Griffin v. Colver, (supra,) to which reference was had. In this opinion it is held that the rent of the property, or the price which would be paid for the charter of a steamboat, referring to the case of Blanchard v. Ely, (21 Wend. 342,) afforded the true measure of damages in such cases. No wrong was done to the defendants, therefore, by the referee. He received the evidence in the first instance conditionally, and in effect passed upon it as insufficient and not affording the true rule or measure of damages in such cases. The referee, in effect, applied the true rule as laid down in Griffin v. Colver, to the evidence offered, and in the light of that case and of the rule there asserted, held that the defendants’ evidence was inadmissible, or rather that the defendants, upon such evidence, had not sustained any damages. The referee, we think, applied the right rule in estimating the defendants’ damages, and did not err in the *38conclusions of fact in the application of such rule to the defendants’ evidence.
[Monroe General Term, September 2, 1861.Smith, Johnson and Knox, Justices.]
Ho error in substance injurious to the defendants having been committed, the judgment should be affirmed.