
    Edward S. Walsh, Respondent, v. George W. Hyatt and Horace J. Subers, Appellants.
    
      Charter of a dredge — the contract price is recoverable if the dredge be furnished, although the conditions are such as to render work with it impossible. .
    Edward S. Walsh, as party of the first part, and George W. Hyatt and Horace J. Subers, as parties of the second part, entered into the following contract:
    “The party of the first part hereby agrees to furnish and operate for the parties of the second part his dredge No. 6 to unload refuse from scows in the Newark Bay.
    
      “For doing the above work the party of the second part agrees to pay to the party of the first part the sum of Fifty-five ($55.00) Dollars per day, not including Sundays, as no work will be done on that day.
    “ Payment to be made on or before the 5th of each month for the number of days the dredge has been on the work for the previous month.
    “It is further understood and agreed that the party of the second part will charter the dredge for thirty (30) days from date of charter and will give ten (10) days’ notice previous to the expiration of the present charrter whether the dredge is to continue, on the work for the succeeding month or not.” Immediately after the execution of the contract the dredge was placed under the directions of Hyatt and Subers, and remained at their disposal with its captain and crew during the thirty days specified in the contract.
    In an action brought by Walsh against Hyatt -and Subers to recover the contract price for the use of the dredge, the complaint alleged full performance. Upon the trial it appeared that the dredge utterly failed to do the work of unloading the scows, but the jury found that such failure was not due to the fault of the plaintiff, but to the fact that the dredge was berthed by the defendants in every instance at places where there was not sufficient depth of water for its successful operation.
    
      Meld, that as the essence of the contract was the charter by the defendants of the dredge and its crew for thirty days, if the plaintiff furnished the dredge and the crew for the required time, the plaintiff could recover the contract price on the theory of performance, although the defendants had no work to do, or the conditions created by them were such as to render work impossible.
    Appeal by the defendants, George W. .Hyatt and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 29th day of- October, 1901, upon the verdict of a jury,, and also from an order entered in said clerk’s office on the 12th day of November, 1901, denying the defendants’ motion for a new trial made upon the minutes.
    
      
      Herbert R. Limburger [W. Harry Sefton with him on the brief], for the appellants.
    
      James M. Hunt, for the respondent.
   Hirschberg, J.:

On September 22, 1900, the plaintiff entered into a written contract with the defendants, of which the following is a copy :

“ T. D. Scanlon.
P. H. Wise.
“ Scanlon & Wise,
“ Tugs, Canal Boats, Etc., for Sale or Charier.
“ General Lighterage and Transportation, Harbor, River and Sound.
“ Scows, Covered and Derrick Barges. Yessels of Every Description.
Office 14 South St., cor. Broad St.
“ Telephone 2645'Broad.
New York, September 22nd, 1900.
“This agreement, entered into between Edward S. Walsh, party of the first part, and George W. Hyatt, Horace J. Suffers, of the second part, is as follows:
“ The party of the first part hereby agrees to furnish and operate for the parties of the second part his dredge No. 6 to unload refuse from scows in the Newark Bay.
For doing the above work the party of the second part agrees to pay to the party of the first part the sum of Fifty-five ($55.00) Dollars per day, not including Sundays, as no work will be done on that day.
“ Payment to be made on or before the 5th of each month for the number of days the dredge has been on the work for the previous month.
“ It is further understood and agreed that the party of the second part will charter the dredge for thirty (30) days from date of charter and will give ten (10) days’ notice previous to the expiration of the present charter whether the dredge is to continue on the work for the succeeding month or not.
“EDWARD S. WALSH.
“ GEORGE W. HYATT.
“ HORACE J. SHBERS.”

Immediately after the execution of the contract the dredge was taken to Elizabetlipart under the defendants’ directions, and a few days after was towed by the defendants into Newark Bay, where it remained at their disposal with its captain and crew during the thirty days specified in the contract. It utterly failed to do the work of unloading the scows, but the jury has found, upon conflicting evidence, that this was not at all the fault of the plaintiff, but was entirely owing to the fact that the dredge was berthed by the defendants in every instance at places where there was not sufficient depth of water for its successful operation.

The action is to recovér the contract price, the complaint alleging full performance by the plaintiff, and the defendants contend that it comes within the rule that under such circumstances proof of matters excusing or waiving performance is not admissible, and a recovery may not be had upon that theory. There would be force iii the contention if the contract were one for the performance of any specific amount of work, but it is apparent that the essence of the contract is the charter by the defendants of the dredge and its crew for thirty days, the same to be operated for that period, it is true, by the plaintiff for the defendants’ benefit, but if the plaintiff furnished the dredge and crew for the required time, liability to pay the contract price would follow, although the defendants had no work to do, or the conditions created by them were such as to render work impossible.

In Tebo v. Jordan (147 N. Y. 387) the defendants chartered a tug to tow coal barges, and while the tug was engaged in the work the barges were stranded, as the defendants claimed, on account of the incompetency of the plaintiff’s pilot. The jury found that the accident resulted from perils of the sea for which, under the contract, the plaintiff was not liable, and the Court of Appeals held that he could recover the contract price until the time when the contract could be terminated by its terms. The point that the plaintiff had failed to prove performance was raised and apparently overruled. Moreover, the provision in the contract in the case at bar, by which the plaintiff agreed to operate the dredge in unloading scows, certainly depended upon the furnishing of such scows by the defendants at a place where they might be unloaded, and the principle which controlled the decision in Howard v. American Mfg. Co. (162 N. Y. 347) is applicable. There the agreement was to furnish air propellers for removing smoke by the use of power to be furnished by the other party, and the failure to furnish the power was held to excuse the contractor from making a test required under the terms of the contract.

“ IVhen performance of a contract,” said the court in Smith v. Wetmore (167 N. Y. 234, 239), “is alleged by the plaintiff and denied by the defendant, it is competent for the plaintiff to prove that the defendant would not allow him to perform, or repudiated the contract, or had committed a breach of it himself, by hindering performance or refusing to abide by its obligations.”

If the contract in question, as has been said, was one solely for the performance of specific work, and such performance was prevented by the defendants, it may very well be that the only remedy would be found in an action for damages for breach of contract; but the contract including as it does a charter of the dredge, the plaintiff, if not at fault, was not compellable to accept a discharge of the vessel under the circumstances disclosed by the record and as the jury must have found them, but could recover the contract price on the theory of performance.

The defendants pleaded that the contract was executed by them in reliance upon false representations made by the plaintiff’s agent as to the power and capacity of the dredge for doing the work, and that upon discovering the fact that such representations were untrue, they rescinded the contract. The learned trial justice rejected the evidence offered for the purpose of proving such representations, and the ruling apjiears to be correct. There was no allegation of fraud, or that the representations were known to the plaintiff or Ms agent to be untrue, or that they were made with intent to deceive or for any fraudulent purpose. On the face of the pleadings, they constituted no sufficient ground for rescission. (Lefler v. Field, 52 N. Y. 621; Kountze v. Kennedy, 147 id. 124; Robinson v. Vaughan, 49 App. Div. 170.) There was no proof that the defendants did rescind the contract. There was evidence to the effect that they claimed that the plaintiff had broken the contract, and that they in consequence thereof ordered that the dredge be removed from the work, but no notice of rescission appears in any form. Nor did the defendants claim upon the submission of the case that such issue should be presented to the jury for determination.

The other exceptions argued have been examined and no error found.

The judgment and order should be affirmed.

All concurred.

Judgment and order affirmed, with costs.  