By the Court.
Woodruff, J.I have carefully reconsidered the views expressed by me in giving the decision in this case at special term, and am confirmed in the opinion there given. So far, therefore, as relates to the construction of the charter party, the facts there found, and the rights and liabilities resulting therefrom, that decision may be taken as expressing my opinion on this appeal.
A question was, however, raised on the argument of the appeal, to which no particular attention was paid on the trial, and in relation to which nothing specific was said in the decision, viz., whether the period occupied in discharging the coal at San Francisco ought to have been allowed to the plaintiffs, even if the decision of the court, in regard to the delay in discharging the lumber, be deemed correct. I have no recollection that it was claimed on the trial that in this particular there was any difference between the coal and the *324lumber, and the omission of any notice of such a question in the decision there given, leads to the conclusion that the point was not raised.
The ground now taken by the appellants on this subject is, that the coal was the property of the plaintiff himself, shipped for ballast, and that the defendants are not liable for demur-rage during the period employed by the master in discharging the owner’s property. That the defendants had the whole of the sixty-six lay days left unexpired when the vessel arrived, within which to discharge the lumber; and if such discharge had been completed within sixty-six days, no claim to demurrage would have arisen, however much time was thereafter consumed in discharging the coal.
There is much force in the suggestion of the respondent’s counsel that, although the liability of the defendants for any sum whatever is denied, yet they ought not to be permitted, for the first time, to set up such a distinction here; for, had the point been taken in any manner by such an allegation in the pleadings, or by such a claim on the trial, the plaintiff might have been prepared to show that no such fact exists, as is now alleged.
But without disposing of the appellants’ present claim upon this ground, or considering the legal conclusion from the fact assumed, I am constrained to say that, in my judgment, the pleadings and proofs, as now exhibited, do not warrant the discrimination now contended for.
The claim rests entirely upon the assumption that the coal was the property of the owner of the ship, (the plaintiff,) and sent out as ballast. And without considering the question whether, if the coal was in fact the owner’s property, it would have, as matter of law, reduced the number of days of demurrage chargeable to the defendants, this assumption must first be sustained.
Now, although the proof on this subject is loose, and of a character which, had it been objected to, might have been deemed incompetent, yet it was received without objection. One witness had an impression that the coal was sold to *325Captain Codman; (one of the defendants;) and another witness testifies to an actual sale to Codman after the coal was on board, and states the manner in which it was paid for, and when the first payment was made. It appeared, however, that he did not speak from any personal knowledge, or from having been present at the sale, but derived his information from his position as book keeper for the agents of the ship here, and the entries of the transaction in the books then made by him. The very looseness and questionable nature of this evidence, received without objection, warrants, in some degree, the apprehension, not only that the defendants did not, on the trial, rely upon any doubt of Codman’s ownership, but that the case was tried with a conscious knowledge that this evidence was true, and that he was, in fact, owner. Add to this the evidence that there was a bill of lading issued by the master for this coal, which would not have been necessary if the coal was the owner’s property; or if it was done as a voucher between master and owners, still the amount of the surplus freight due to the defendants, when the freight was collected, must have been greater, if they were not chargeable with freight on the very coal in question. I should hardly be willing to alter the finding in this respect upon the evidence. But, be this as it may, the pleadings seem to me conclusive, when considered in connection with the charter party.
The complaint sets out the charter party, the defendants’ agreement to furnish a cargo, and avers that the defendants caused the said bark to be laden with a large cargo of lumber and coal.
The answer, in terms, admits that the defendants “ loaded said bark with the cargo mentioned in the complaint.” After such an admission, the defendants were not likely to insist o” the trial, that the coal was not shipped by them on freighl under the charter party. Hor was it necessary for the plaii tiff to prove it, nor would the defendants have been permitte to deny it.
It appears to me, therefore, that the whole foundation f< *326the distinction between the coal and lumber fails, and that under these pleadings no such question can be raised.
It is true that one of the witnesses says the bricks and coal were in the lower hold, and were ballast to stiffen the vessel. It was none the less chargeable with freight if that was so; and if the coal belonged to the defendants, it was not the duty of the master of the ship to take out the lumber for the mere purpose of discharging the coal, nor until the lumber itself was discharged, when, as the tenor of the evidence is, the coal could not be discharged until the lumber was taken out of the ship.
My conclusion is, therefore, that there was no error in the decision at special term, in relation to the allowance for the time occupied in discharging the coal.
It is not denied that the bricks belonged to the plaintiff, but how much time was occupied in discharging the bricks does not appear. The testimony of the witnesses is addressed to the lumber and coal.
It does appear that in fixing the number of days occupied in the discharge of the cargo, an error was committed at special term, in not observing that the 4th of March and 5th of April, as well as the intervening time, were both occupied, and counting the period so as to include both days, the time occupied was thirty-three days, and deducting two unexpired lay days, would have charged the defendants with thirty-one days’ demurrage, instead of thirty, as allowed on the trial. But the appellants do not insist upon this as a ground of reversal, and the respondent, who alone is prejudiced thereby, has not appealed.
My conclusion is, that the judgment at special term should be affirmed.
Judgment affirmed.