There is practically but one question of importance in this case, which is whether the plaintiff had earned, and was entitled to recover, for the transportation of the oil which was destroyed in the barge. And the determination of such question depends upon whether or not, in view of the facts, the oil had been delivered by the plaintiff to the defendant previous to its destruction. The ■contract provides, in regard to the obligation assumed by the plaintiff to transport the said oil, as follows, viz. :
“ Fourth. The party of the second part agrees to transport said product of said refineries not to exceed, however, the quantity specified in article one, and at their own expense to load the same and transport it over their respective railroads, as follows: ‘ During the season of navigation on the Hudson river to Athens, and thence by barges to the warehouse of the party of the first part at Hunter’s Point, Long Island City, Long Island, and during closed navigation on the Hudson river, át the warehouse of the party of the first part at Sixty-fifth street, New York city, contiguous to the tracks of the party of the second part, and deliver the same in good order and condition, except as provided in articles two and three.’
“ Fifth. The New York Central and Hudson River Railroad *41Company agrees that it will (on or before the 1st day of June, 1873) furnish 700 suitable covered cars to be used continuously in the execution of this contract, aud haul said cars, as also those furnished by the Lake Shore and Michigan Southern Railway Company in full trains over its road with promptness and uniformity of movement, and cause the same to he unloaded and returned without delay upon their arrival at place of destination, during the months of April and May.” The contract provides further in regard to the obligation of the defendant, as follows : “ The party of the first part agrees to pay to the party of the second part on the delivery of said products” etc.
The barge containing the oil lay alongside the dock about sixty feet distant from the defendant's warehouse. At the edge of the dock an incline plane was so adjusted that a barrel of oil placed upon it from the barge would roll by force of gravitation into such warehouse. When the fire occurred, the oil was in process of removal from the barge to the warehouse. The plaintiff was allowed by the referee compensation for transporting all the oil which had been removed from the barge previous to the fire. The right of the plaintiff to demand compensation depended upon the performance of the contract, which, as we interpret it in the light of the surrounding circumstances, obligated the plaintiff to remove the oil from the barge before compensation could be considered earned. So the referee- held, and examination and reflection satisfies us that he was correct. W e perceive nothing in the case which would justify a conclusion that strict performance on the part of the plaintiff has been waived or excused by the defendant. The simple fact that the defendant paid men who were engaged in unloading barges in 1873, which were laded with oil, would not justify an inference that the defendant was under obligation to unload the oil in question. The case contains the following .admission : “ It is admitted that none of the oil was taken off the barges by defendant’s employes, although 159 barrels and sixty empties were taken off the barge Barnes and put into the store house of defendant before the fire occurred.”
We have examined the various exceptions taken to the rulings of the referee and discover no error which could have prejudiced the plaintiff’s case, or which calls for the reversal of the judgment. *42We refer to the following cases bearing upon the question of the delivery of the oil. (The West. Trans. Co. v. Hoyt, 69 N. Y., 234; Brittan v. Barnaby, 21 How. [U. S.], 532; De Mott v. Laraway, 14 Wend., 225; Miller v. Steam Navigation Co., 10 N. Y., 431.)
The judgment must be affirmed.