The jury have found, under the charge of the court, that the injury of which the plaintiff complains, atóse from the neglect of the defendant, and the question in the case must arise under the second part of the charge of the cour-t, as to the duty of the defendant, if prevented by the owner of the cove from putting the lumber in the place contemplated by the parties. There has been no dispute as to the first part of the charge, and *25Indeed there can be none'» If the defendant placed the lumber in a place different from the one where he stipulated to place it when there was no lawful excuse for so doing, he was liable for all damages.
Smith & Peck, for plaintiff. ■Collamer.,for defendant.We are well satisfied with the charge given in this case to the jury, as to the duty of the defendant, and are not disposed to decide whether the defendant was bound by his contract at all events to place the lumber in the cove contemplated •; but considering that he was prevented by the owner from placing it there, and that this was a contingency not contemplated by either of the parties, at the time of making the contract, and, therefore, not provided for, we think the duty of the defendant was very plain. He could not abandon all care of the property intrusted to his charge 5 •but he became an agent from necessity, and was bound to take prudent care of the property until he had given notice to the •owner, and the o-wner had had sufficient time to make such further provision as he thought proper. By giving this notice he ■could relieve himself from any further responsibility after a rea.sonable time had elapsed. And.it was his duty to give such notice when by the interference oftfae owner of the cove he was prevented from placing the property dn the situation which the plaintiff directed. The situation of the defendant, under these circumstances, is somewhat similar to'that of a master of a vessel when :the voyage is interrupted in a foreign port by capture, detention, or unforeseen, or unusual casualties:; he then becomes from necessity the agent for the owners, freighters, insurers, and all concerned.—9 Mass. 548, Douglas vs. Moody et. al. The court did not charge the jury that a neglect .to give notice to the owner would .make the defendant liable ; but that the property remained in his custody until such notice, and that he-was'bound to take prude.nt ■care of the same. The jury have found that there was on the *part of the defendant a-want of this care, and that in consequence thereof the plaintiff has sustained the injury complained of. The case was certainly put on as favorable ground for the defendáis as he was entitled to.
The judgement of the county court must be affirmed.