
    Roberts and another v. Societa Anonlina Ve Di Palermo.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed June 28, 1886.)
    
    1. Contract—Charter party—Delivery oe cargo—Sufficiency of.
    A delivery of a cargo under a chatter party in a partial poor condition-, is no obstacle to the recovery of a lump sum of freight, nor do trifling-short deliveries work a forfeiture of such entire lump sum, though if the same arise from actionable default on the part of the vessel or owners, a proper amount may be offset, if it be affirmatively claimed in the answer.
    2. Same—True delivery—Effect of.
    The words “true delivery ” in a charter party qualify the act of delivery,, not the condition of the g..ods delivered.
    3. Same—Pleading—Denials as to written instrument.
    A denial that a copy of a written instrument made a part of a complaint, is a “ true and correct copy of the said original,” raises no material issue. Affirmative defenses must be pleaded. Post v. Robinson, 1 Johns., 24, distinguished.
    Appeal by defendants from judgment entered on verdict for plaintiffs as directed by the court and from order denying defendant’s motion for a new trial made upon the-minutes.
    
      Edward S. Hubbe, for appellant.
    
      Charles Stuart Davison, for respondent.
   Sedgwick, J.

The action was for the balance due of a-lump sum agreed to be paid, by the defendants as charterers of a steam vessel, to the plaintiff as owners. The complaint alleged that” the plaintiff and defendants entered ‘ into a certain contract, whereof a copy is hereunto annexed, and marked A, and made a part hereof. This copy set out a complete charter party between the parties. The answer-of the defendants admitted that on the day named in the complaint the parties entered into a certain contract commonly called a charter party, but whether the copy marked A is a true and correct copy of the said original this defendant has no knowledge or information sufficient to form a belief, and therefore denies that it is so and insists that the original be produced upon the trial for greater certainty.”" On the trial the original was not produced. At the end of' plaintiffs’ case defendants’ counsel moved to dismiss the-complaint on the ground that the answer not admitting the-charter party to have been such as the copy annexed to the-complaint described, there was a failure to prove the charter party. The ground was not sufficient. The answer made an issue upon whether the copy was true and correct. It would not be so, if it did not reproduce parts of the original,. which were not essential to a description of the legal effect of the original. It would have been sufficient for the complaint to have stated that legal effect. The answer raised, a false or immaterial issue, as it did not make an issue upon whether the copy set out the substance or legal effect of the-contract that was made.

Another exception regards an offer made, which the-counsel for plaintiffs consented should be passed upon by the court, as if its subject were contained in questions correct in form asked by defendants’ counsel of witnesses. The court overruled the offer, which was to prove that plaintiff did not deliver 963 boxes of oranges—part of the-cargo—in good condition; that he did not deliver at all fifty-eight boxes of the cargo, and that he delivered fifty boxes of oranges with the contents robbed more or less.

The counsel for appellant urges that if these facts had appeared they would have proved that the plaintiffs had not made a true delivery of the cargo, the charter providing that the lump sums, excepting certain advances out of it, should be paid by the charterers on “the true delivery of the cargo,” and therefore the time of payment had not come, for the fact did not exist, which was by the contract to exist before there was a duty of payment.

The question then is, had the plaintiff shown that there had been a true delivery of the cargo? It was satisfactorily shown that all the cargo there was in the steamer at the time of arrival was delivered. The steamer, by the charter, was of the burthen per net register 1,118 tons. The defendants filled the whole cargo space of the vessel, excepting cross-bunkers, that would contain about 300 tons. The cargo belonging to defendants was, in part, 200 tons of sulphur and the remainder was of boxes of oranges and lemons, so that the quantity of cargo not delivered according to the terms of the offer was an insignificant portion of the boxes of oranges and lemons stowed as cargo.

The bad condition of 963 boxes, as assumed by the offer, was no obstacle to the recovery of the lump sum. That was to be paid upon delivery, in fact of the cargo, without reference to its poor condition at time of delivery. If the condition had become poor, from an actionable default on the part of the owners, then the defendants might, have offset a proper amount if it had been claimed in the answer affirmatively. The answer did not make such a claim. The word true, used with the word delivery, qualifies the act of delivery, not the condition of the goods delivered.

When the parties stipulated as to true delivery, they intended to apply the words to a cargo liable to diminution from slight causes that could not in the ordinary course of a voyage be prevented unless by a strict and experienced custody, that the nature of the cargo did not justify and which the • defendants could not have expected from the plaintiff. They referred to the cargo as a whole and not to each hundred of the many thousands of oranges and lemons according to their sense of what was likely to happen, it must have been foreseen that a small portion of the whole would be missing at the end of the voyage. It is not to be imagined that either party meant that the' freight should not be earned, unless every box of fruit was delivered for on the theory of the defendants, an omission to deliver one box would have been a defense, as to any part of the claim for the lump sum. If, the offer had further suggested that there was proof of an intentional taking by the plaintiff of what was not delivered, there should be of course no recovery. There was in my opinion, a true delivery of the ■cargo within the meaning of the charter party and the obligation of the defendants to pay the balance of the lump .sum was complete.

In Post v. Robertson (1 J. R., 24), the fact was that none of the cargo for the carrying of which the freight alleged to be due, had been promised to be paid was delivered.

The remedy of the defendants after their obligation to pay the sum liquidated by the contract had been completed, was, if the non- delivery of the part of the cargo, was a breach of any express or implied obligation of the defend.ants to make an affirmative claim in the answer, or to bring another action.

The judgment and order appealed from should be affirmed with costs.  