Without expressing any dissent from the views of the first judge on the point whether the usage in question was admissible in evidence, I concur in the result to which, he has arrived upon the ground that even if we should deem the evidence to establish a deviation by the plaintiffs, the damages which the justice allowed as an abatement from the plaintiffs’ claim for freight were not allowable. They were not, I think, of such a character as could have been allowed to the defendant, had he brought his action for damages for the alleged deviation, and therefore they were not the subject of recoupment. They are not at all the immediate and direct result of the alleged wrongful deviation. Had the goods never been delivered at all, the premium of insurance now in question could not have been taken into view, in ascertaining the amount of the defendant’s loss, as a ground for enhancing the damages. This premium could not have been added to the value of the goods. The plaintiffs became, by their agreement to carry, responsible to the whole extent of the value of the goods, and to no greater amount. The defendant, by entering into other collateral agreements, by way of further assurance to himself that the goods should arrive safely, could not, I think, enlarge the plaintiffs’ responsibility. And the goods having been, in fact, safely delivered, and no damage being shown to have resulted from delay in the delivery, I think the plaintiffs were entitled to the full amount of their freight.
Judgment accordingly.