
    Spencer M. Clark and Edward M. Coleman v. Augustus E. Masters and Ezra Nye.
    A notice, given to the consignee of goods by the master of a vessel of her arrival, is not equivalent to a personal delivery of the goods, so as to entitle the master to demand the immediate payment of freight. The freight cannot be claimed until the goods have been unladen and a delivery has been made or tendered.
    The delivery of merchandize by the master of a vessel, and the payment of freight by the owner and consignee, are simultaneous and concurrent acts; so that the master is not bound to deliver the goods until the freight is paid or tendered, nor the owner to pay the freight until the goods are unladen and delivered, or the delivery is tendered.
    But the owner is not bound to accept a delivery and pay the freight, until he has had an opportunity to examine into the state and condition of the goods, and to ascertain their quantity, since he has a right to deduct any damage they may have received on the transportation not imputable to the perils of navigation, and any deficiency in quantity from the usual or stipulated freight. Hence, if the quantity and quality of the goods cannot be ascertained by an examination on board, it is the duty of the master to unlade them and place them in a situation in which the necessary examination may be had.
    Such is emphatically the duty of the master when the owner of the goods offers, at his own expense, to tranship the goods into a lighter for examination, and to continue the lien upon them during such examination.
    The contract of affreightment, in respect to each consignment, is entire, and the master has no right to divide it into lots or parcels and demand a pro raid or proportionate freight on each. No portion of the freight is demandable until the whole consignment has been delivered, or tendered for delivery.
    
      Seld, that as the charge of the Judge upon the trial, in effect denied the above propositions, the exceptions to it were well taken, and there must be a new trial, posts to abide event.
    (Before Dube and Hoeeman, J.J.)
    Heard, May 6;
    decided, May 9, 1857.
    Motion for a new trial upon a case containing exceptions, which, at the trial, were ordered to be-heard, in the first instance, at the General Term. The action was tried before Mr. Justice Campbell, and a jury, in April, 1855.
    The action was for the wrongful detention of a large quantity of wheat, valued in the complaint at $4,822. The complaint claimed damages for the detention of the goods to the amount of $5,000.
    
      The defence, substantially was, that the wheat had been detained in consequence of the wrongful refusal of the plaintiffs to pay the freight and other charges of transportation.
    The following is a statement of the facts of the case as established by the evidence on the trial.
    The firm of Fitzhugh & Littlejohn were common carriers, doing business as such between Oswego and Hew York, under the name of the Old Oswego Line, and in the month of November, 1853, at Oswego, took on board the “ Canada West,” one of their boats, 2412 bushels of wheat in bulk, to be transported to Hew York, and there delivered without delay to the plaintiffs, who were the consignees named in the manifest of the boat.
    Early in the morning of the 22d of November, the “ Canada West” arrived at Hew York, and was taken to Pier Ho. 5, East River, which was the usual landing-place of the . Old Oswego Line. Immediately after its arrival the following notice in writing was sent by the agent of the line to the plaintiffs, by whom it was received about 10 o’clock, A. M.:—
    “Landing from Old Oswego Line; Lake Boat, Canada West, Pier 5, East River, foot of Broad Street, consigned to Clark & Coleman, to whom the owners of the line look for the payment of the following charges:
    Cj <D bO «2 ^ C5 . - O te i~f MPA !§ a'-* ^ of R o am
    
    “Hew York, Hov. 22d, 1853. Please send digs, before delivery.
    
    ’Acct. of
    65610 bus. Genesee Wheat, 1755=8 bus. “ “
    charges. ;167 32 465 34 632 cts. 66
    Not accountable for shortages, unless weighed out by suitable scales and hopper.
    If towed from slip, subject to half lighterage.”
    The plaintiffs had been accustomed to receive similar landing notices from the same line before, excepting the claim for pay? ment of charges before delivery, which was unusual, and was insisted‘upon by the line in this instance, because of a previous dispute between the parties in relation to a distinct matter, and as the agent of the line said, “he did not choose to trust the plaintiffs.”
    At one o’clock, in the afternoon of the 22d, the plaintiffs sent to the agent of the line an order in writing, as follows:
    “ New York, 22d Nov., 1858.
    E. S. Littlejohn, Agt.,
    Old Oswego Line.
    Please send the boat- Canada West with 241206 bus. wheat to the foot of Broome st., E. B., and the N. Y. City Mills, cor. Lewis and Broome sts. will discharge it.
    Rep’y yours,
    Clark & Coleman.”
    Very soon after, a clerk of the line called at plaintiffs’ office and demanded the freight, and Mr. Clark, one of the plaintiffs, told him, that the freight was ready for him as soon as the wheat was delivered.
    Nothing more passed between the parties till the morning of the 23d, when the plaintiffs offered to send a lighter alongside the canal boat, and proposed to the agent of the line that he should unlade the wheat into the lighter, keeping it still in his possession, and retaining his lien upon it; that if the wheat was found right in quantity and condition, the freight and charges would be paid upon its delivery to the plaintiffs: such delivery to take place on board the lighter.
    He refused to do anything until the freight and charges were paid, but offered to deliver bushel by bushel, on being paid bushel by bushel, for freight and charges at the same rate.
    He never departed from his requirement that before putting the wheat out of his boat all charges should be paid, except that he would put it out bushel by bushel, or bag by bag, on being paid freight bushel by bushel or bag by bag. He never offered to put the grain out of his boat, where the plaintiffs could see its quantity and condition, he retaining possession until they paid the freight and charges. The agent of the carriers, however, testified that, the condition of the wheat might have been examined on board the boat, “ by instruments and by shovelling down.”
    To the demand of the plaintiffs that the wheat should be delivered at Broome street, the agent of the line made the same answer. He demanded that freight and half lighterage should be paid before he would have the boat start from Pier 5, for Broome street, but finally offered to deliver it wherever the plaintiffs chose, on being paid freight and charges bushel by bushel, as delivered.
    The plaintiffs expressly and repeatedly stated to the agent of the line that they did not want the possession of the wheat till they paid the freight, but wanted to know that it was right in quantity and quality. They demanded that the carriers should, at their own expense, place the wheat out of the canal-boat where the plaintiffs could see its condition and quantity, before delivery and payment of freight.
    In the evening of the 23d the agent of the line sent the boat away from the pier, and placed the wheat in store in one of the storehouses of the defendants, who continued so to hold it subject only to the order of Fitzhugh and Littlejohn until after_ the service upon them of the summons and complaint in this action. On the 1st of December the defendants notified the plaintiffs of its being so held by them. On the 29th of December the plaintiffs tendered to the agent of the line $632,66, being the full amount of freight and charges as stated in the landing notice, and thereupon demanded possession of the wheat in store, and upon refusal to deliver it unless the plaintiffs also paid half lighterage and storage and insurance,-they commenced this action for its recovery.
    The testimony being closed, the Judge charged the jury that in the case of transportation by common carriers by ships or vessels, personal delivery to the consignee was dispensed with, and notice to the consignee of the arrival, came in lieu of personal delivery: that it was not disputed in this case but that such notice was properly given. It was also undisputed that the wheat sued for, was capable of being fully examined and inspected on board the boat, as it was when it arrived in port, so as to determine its quality and condition, and that it was so examined by the plaintiffs and was sold by them while on board the boat, and after such an examination. That the plaintiffs claimed that the carriers were not entitled to payment of their freight, until the wheat had been put out, so that plaintiffs could see and examine its condition, before paying the freight. What might be the rule when the cargo could not be examined on board as to its quality and condition, it was not then necessary to determine; but in this case, the carriers were not bound to afford any further opportunities for an examination as to quality and condition than had been done. That in the opinion of the Court, the carriers were not obliged to put out the cargo, so as to show the whole quantity to be there, before becoming entitled to freight; that such a rule would impose great labor and expense on the carriers, besides endangering their insurances, &c. That in the opinion of the Court, the carriers had done all that was required of them, in this case, to entitle themselves to their freight, and that they had a right to require the payment of the freight before turning out the whole of the wheat. That whether that freight was required to be paid in gross, before the delivery of any part of the wheat, or parcel by parcel, on delivery in the same manner, was immaterial in this case, as the plaintiffs could not recover upon the facts they had shown, and that defendants were therefore entitled to recover the subsequent charges, which were admitted to be the sum of $130 85, with interest from January 28, 1854.
    To this charge of the Judge and each alternative direction thereof the plaintiffs’ counsel then and there excepted.
    But further, you will specifically find and answer whether the defendants’ bailors did or did not make the further offer to deliver, stated by the witness Littlejohn, as follows: “ I stated to Mr. Clark, that if he would furnish a lighter at his own expense and risk, and pay the cost of transferring the grain, he relieving me from claim for shortages if measured out, and he assuming the risk of the wheat in the lighter, and allowing me to retain possession and lien till it was all to his satisfaction, I would do so, or that I would put it in elevators on the same conditions; then he was to pay the freight and charges and receive the property.”
    His Honor also directed the jury to assess the value of the property claimed by the plaintiffs.
    
      The jury, thereupon, found a verdict for the defendants for $141 52, and specially found, in answer to the specific question proposed to them, in the negative, that no such offer was made. They assessed the value of the property claimed at $4,000, that sum being agreed by the parties.
    This case is made with liberty to either party to turn the same into a bill of exceptions or special verdict.
    The exceptions to be heard in the first instance at General Term.
    
      W. M. Evarts, for the plaintiffs.
    
      J. B. Yates Sommers, for the defendants.
   By the Court. Duer, J.

We are clearly of opinion that the Judge erred in the instructions that he gave to the jury, and that upon the facts in evidence not contested, and the special finding of the jury, the plaintiffs were entitled to a verdict; they had proved all the facts necessary to maintain the action.

If, indeed, the special question put to the jury, whether “ the witness, Littlejohn, stated to Mr. Clark, that if he would furnish a lighter at his own expense and risk, and pay the cost of transferring the grain, he relieving me from claims for shortages, and assuming the risk of the wheat in the lighter, and allowing me to retain possession and lien until all was to his satisfaction,” had been answered in the affirmative, the aspect of the case would have been materially changed, and there would have been grounds for arguing that the defendants were entitled to retain their verdict. But the question was answered in the negative, and by this answer the jury, in effect, declared that the statement of Parish, the clerk of the plaintiffs, was entirely correct, namely : he told Littlejohn that “ we (the plaintiffs) would furnish a lighter alongside the boat, or he might furnish a lighter, at our expense, and transfer the wheat into it, and when it was transferred we would pay the freight and take possession of it:" and on his cross-examination, that “his offer of a lighter was intended to cover the whole matter of expenses except weighing.” Such, we are bound to say, are the facts of the case, and the question that arises upon them is, whether Littlejohn was not bound to comply with the proposal thus made, and deliver the wheat in conformity to its terms ? If he was, he had no right to store the wheat, and the defendants, with whom it was stored, in refusing to deliver it to the plaintiffs upon request, were guilty of a wrongful detention. If he was not so bound, the defendants were justified in their refusal, and the verdict must stand. There is plainly only one ground upon which the refusal of Littlejohn to deliver the wheat, upon the terms proposed, can be vindicated, namely: that in giving notice to the plaintiffs of the arrival of the'wheat, he had done all he was bound to do, and was entitled to demand the payment of the whole freight and charges, before any part of the cargo was moved; that the notice, in other words, was equivalent to actual delivery. The law was thus laid down by the learned Judge upon the trial, and he founded on it a positive direction to the jury to find a verdict for the defendants. His language was explicit, that in the case of transportation by common carriers—by ships or vessels—personal delivery to the consignee was dispensed with, and notice to the consignee of the arrival came in lieu of a personal delivery; and that, in the opinion of the Court, the carriers had done all that was required of them to entitle themselves to their freight, and that they had a right to require the payment of the freight before turning out the whole of the wheat;—propositions that amount to saying, that where notice of arrival has been given, the master may instantly and rightfully demand the whole freight, although no portion of the cargo has been discharged, and no opportunity has been given to the consignee of examining its condition and ascertaining its quantity.

We must think that, in these propositions, our learned brother was entirely mistaken; and it seems to us manifest, that the source of the error was his own application of the rule that exempts the carrier of goods by a ship or vessel from the duty, which, as a general rule, the law imposes upon a common carrier, viz., that of delivering the goods, which he transports, to the owner or consignee personally, at the place where the transportation ends. He is bound to seek the person to whom the delivery is to be made, and make its tender, and, consequently, must have the goods with him when the tender is made.—Gibson v. Culver, 17 Wend. 305; Mayell v. Potter, 2 John, Cases 371; Fisk v. Newton, 1 Denio, 45; Price v. Powell, 3 Coms. 322; Schroeder v. Hudson R. R. R. Co., 5 Duer 62. The law, by a very reasonable exception, releases the master of a vessel, in which the goods to be delivered are transported, from the duty of seeking out the owner or consignee, and making to him, personally, an actual delivery or tender of a delivery; but, in his case, holds it to be sufficient that he gives a written notice to such owner or consignee of the arrival of the vessel, and of the place where the goods will be landed, and their delivery be made; thus casting upon the consignee, the duty of attending at the place so designated, of receiving there the delivery of the goods, and paying the freight for their transportation. We think, however, that we are entirely safe in saying that there is no authority, nor semblance of an authority, for the position that the notice, by the master of a vessel, of the place where he intends to deliver the goods, has the same effect as an actual personal delivery or tender by an ordinary carrier, so as to give to the party in the one case as well as in the other, an immediate right to demand the payment of the freight. We believe the doctrine to be absolutely novel. We are certain it would be most unreasonable. The ordinary carrier in tendering the goods themselves, does all that the law can require him to perform, all indeed that he can do, to entitle him to his freight. The master, in giving notice to the consignee, performs only a part of the duty that he is bound to perform, to render his demand of freight consistent with law or reason.

It is a serious mistake to suppose that the payment of freight is a condition precedent to the delivery of the cargo in the sense that has been contended for, that is, precedent even to the discharge of the cargo. The discharge or unlading of the cargo, is a duty that the law casts upon the master, the whole labor and expense must be borne by him or his owner. To enable him to deliver the cargo, this duty of unlading it must first be performed, and its performance is as truly a condition precedent to the constructive delivery of the goods by a tender, as to their actual, by a change of possession.

The payment of freight and the delivery of the goods are simultaneous and concurrent acts; neither, strictly speaking, is a condition precedent to the other. As in the case of the delivery of a deed, and the payment of the purchase money agreed to be made on the same day, they are conditions mutually dependent. The consignee is not bound to pay the freight until the goods are delivered, nor the master to deliver the goods until the freight is paid. If the goods are withheld the freight must be tendered, if the freight, the goods, to enable either party to maintain an action against the other, for a breach of contract. Hence, in the present case, if the master was not in a condition to make an immediate delivery of the wheat, he could have no right to demand the payment of freight; and he certainly could make no delivery that the plaintiffs were bound to accept, so long as the wheat remained on board his vessel, and the duty of discharging it rested upon him. Thus the allegation that the notice which the master had given, was alone sufficient to justify his demand of freight, it seems to us, is proved to be groundless. It evidently escaped the attention of the learned judge who tried this cause, and, perhaps, of the counsel, that to discharge the cargo is a duty that belongs to the master, and his performance of it, unless otherwise agreed, a condition precedent to his dlalm for freight.

But there are other, and very conclusive reasons, for holding that the claim of the master, in the present case, for the whole freight, before the wheat, or any portion of it, was delivered or offered to be delivered, cannot be sustained. We apprehend that it is now settled law, that the owner of goods is not bound to accept their delivery, and pay the freight, until he has had an opportunity of ascertaining how far they correspond in quantity and description with the bill of lading, and of examining into their actual state and condition. He has a right to deduct from the usual or stipulated freight any damage which the goods may have received on the voyage, not imputable to the perils of navigation; and also, any deficiency from the quantity mentioned in the bill of lading; and it is evident, that to enable him to exercise this important right, an examination, prior to the payment of freight, is indispensable. If all the facts, necessary to be known by the owner, can be ascertained by him before an unlading of the cargo, the examination may then be had; but if not, the goods must be unladen at the expense of the master, and - placed in a situation to enable the owner effectually to exercise his rights; this right was very distinctly claimed by the plaintiffs in the present case, and as plainly denied by the master; denied by his refusal to place the wheat in a situation in which it could be examined, unless the whole freight were previously paid. It is true he offered to deliver the wheat, bushel by bushel, receiving a pro rata freight for each bushel as delivered; but it is very clear that this was not an offer to which the plaintiffs were bound to accede. The contract of affreightment, in respect to each consignment, is entire, and no portion of the freight is due until the whole consignment is delivered. The master has no right to divide and split up the consignment into as many lots or parcels as he may deem convenient, making as many contracts as there are parcels, and as many freights as there are contracts. The freight, when payable, is payable as a whole, and it is not payable until all the goods to which it relates have been delivered or tendered.

If before it has been ascertained that the goods to be delivered are all undamaged, and that there is no deficiency in quantity, the master is allowed to divide the consignment into parcels, and demand pay for each parcel as delivered, it was justly observed by the counsel for the plaintiff, that the right of the consignee to recover for damages, or a deficient quantity, may be effectually defeated. One half of the cargo may have been delivered in this form in a sound state, and the pro rata, freight paid, and yet the damage to the residue may exceed the whole freight, which the consignee, had there been no damage, would have been liable to pay; one half of this amount, however, he has already paid, and unless this is immediately refunded, his only remedy is by an action for its recovery. The right of retaining it, which the law gave Tn'm, is gone. It is stated in the Judge’s charge, that the wheat might have been examined on board the boat as it was when it arrived, so as to ascertain its quality and condition; but, upon considering the whole evidence, this question appears so far doubtful, that had it been material, we think it ought to have been submitted to the jury. Let it be admitted, however, that the quality and condition of the wheat might thus have been ascertained, it is not pretended that the fact, that it corresponded in quantity with the call in the bill of lading, could have been ascertained otherwise than by its removal from the boat. This fact, however, was just as important to be known to the plaintiffs, as the state and condition of the wheat, and they had exactly the same right to require that it should be ascertained, before they could be required to pay any portion of the freight—indeed, until it was ascertained, the amount of the freight that would be payable could not be known; it could not, therefore, be demanded; a conjectural payment, on account, the defendants had no right to exact, nor were the plaintiffs bound to make. It is said that the unlading of the wheat, for the purpose of ascertaining its quantity, would have been attended with great labor and expense ; but if this unlading- was a duty which the carriers undertook to perform, if its performance was necessarily implied in their contract to transport and deliver the wheat, the question of its labor and expense was plainly immaterial. We are bound to presume that they were taken into consideration in fixing the amount of the freight. The allegation that the carriers, by unlading the wheat as requested, would have lost their insurance, we do not exactly understand. If this was a usual and proper-mode of discharging cargo from canal boats, an insurance, in the usual terms, would not have been lost. But were this otherwise, if the risk was one which the carriers knew that, in the performance of their duty, they would incur, they should have framed their insurance to cover it, and by not doing so, agreed to assume it. The result is, that the master violated his duty in refusing to unlade the wheat, as requested, and in making the payment of freight a condition precedent. The wheat, it seems, and was admitted, could not with propriety have been discharged upon the wharf to which the canal boat was moored, and it thereby appears that the usage is to discharge such cargoes into lighters brought alongside the boats for that purpose. We do not see why it was not the duty of the carriers in this case to have provided such a lighter, at their own expense, and according to the usage have discharged the cargo. The allegation that by so doing they would have lost their lien for the freight, we consider to be groundless. So long as the examination into the condition and quantity of the wheat was going on, and until the amount to be paid for freight was ascertained, the carriers would have retained their possession and their lien—just as certainly as if the wheat had remained on board the canal boat, and the necessary examination had there been made. The mere' transfer of the wheat from the boat into the lighter could never have been construed as a final delivery to the plaintiffs, changing the possession, and thereby extinguishing the lien of the carriers.

But whether the carriers were bound to provide a fighter, and whether by so doing they would have lost their lien, are questions which it is not here necessary to determine. The plaintiffs offered, at their own expense, to provide a fighter, and that the carriers should. retain their possession, and consequently their lien, until the freight was ascertained and paid. It was the manifest duty of the master and Ms owner, Littlejohn, to have complied with this offer, by unlading and delivering the wheat in conformity to its terms; their refusal to comply with it was in effect a refusal to deliver the wheat at all. It was a breach of their contract, amounting in law to a wrongful conversion to their own use of the property they had undertaken to deliver, and the defendants, by refusing to surrender to the plaintiff, upon request, the property thus wrongfully converted, were guilty of its wrongful detention. Upon the evidence on the trial, the plaintiffs were entitled- to a verdict for its full value.

The verdict for the defendants must therefore be set aside, and there must be a new trial, with costs to abide the event.  