
    John C. Waydell and Others, Composing the Firm of Waydell & Co., Respondents, v. Edwin W. Adams and J. Oswald Jimenis, Composing the Firm of Adams & Jimenis, Appellants.
    
      Practice — review, where the trial is by the court without a jury—proof'required in an action on a contract of affreightment — charge for the carriage of only a part of the articles mentioned in the bill of lading—proof that all the ao'ticles in the bill of lading were not received.
    
    The only method by which questions of law and fact can be reviewed after a trial by the court without a jury is by filing exceptions to the decision, and an appeal from an order denying a motion for a new trial made upon the judge’s minutes raises in such a case no questioh for review.
    Where charterers of a vessel bring an action purely upon a contract of affreightment for the transportation and delivery of a specific quantity of lumber at a fixed price per thousand feet; and the answer admits the contract as stated in the complaint, but denies the delivery of the entire quantity of lumber shipped, the charterers are entitled to recover only upon proof Of a performance of the contract as alleged, and failing such proof,, they are. not in a situation to show that a less quantity was delivered for shipment than that mentioned in the bill of lading, and to recover for the carriage of that amount of lumber delivered to the consignee.
    What proof is insufficient to show that the lumber mentioned in a bill of lading was not in fact all delivered to the charterers, and that all that was delivered to the charterers was delivered to the consignee, considered.
    Appeal "by the defendants, Edwin W. Adams and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Yew York on the 2d day of June, 1897, upon the decision of the court rendered after a trial at the Yew York Trial Term before the court without a jury, aiid also from an order entered in said clerk’s office on the 8th day of "June, 1897, denying the defendants’ motion for a new trial made upon the minutes. ■
    
      A.. H. Larkin, for the appellants.
    
      Frank JD. Sturges, for the respondents.
   Rumsey, J.:

The trial having been had before the court without a jury, it was not regular to move for a new trial upon the judge’s minutes, which could only be done, after a trial by jury. (Code Civ. Proc. § 999.) An appeal from the order denying a. new trial, therefore, raises no question which can be reviewed here, but every question, both of law and fact, is brought before us by the exceptions which were filed to the decision. The only way in which questions of law and fact can be made ready for review, where there has been a trial by the court without a jury, is by filing exceptions to the decision; and when that is done, if the decision is a short one, the whole question is at large before the appellate court, and if the decision contains separate findings of fact and conclusions of law, proper exceptions will enable the court to review every question which may be presented.

The action is brought upon a contract of affreightment. The complaint alleges that the plaintiffs were charterers of the schooner Gcurfield for a voyage between Yew York and Matanzas, Cuba, and that they entered into a contract with the defendants, whereby the defendants agreed to furnish a quantity of lumber to be shipped upon their schooner and delivered at Matanzas, and to pay freight upon it at four dollars and fifty cents a thousand feet upon delivery to the consignee at the port of destination. The complaint then alleges that the defendants delivered to the schooner a quantity of lumber which the defendants stated and" represented to be 314 bundles and 18,445 pieces of white pine lumber, the freight upon which amounted to the sum of $959.06. Then follows an allegation that the lumber shipped by the defendants was duly delivered to the consignee thereof, and that upon delivery of the said lumber there became due as and for the freight, agreed by the defendants to be paid for the transportation thereof;' the sum of $959.06, and that no portion of that freight has been paid except the sum of $123.56, leaving $835.50 due.

The sum of $959.06 is the amount of the freight upon the whole quantity of lumber alleged in the complaint to have been shipped and mentioned in the bill of lading as the quantity delivered by the defendants for transportation to Matanzas. The complaint contains nowhere any allegation or suggestion that any less quantity of lumber than that mentioned in the bill of lading was shipped in Yew York, or that any less quantity was delivered at Matanzas, but it proceeds upon the theory that the quantity mentioned in the bill of lading was shipped, that that quantity was delivered, and that the amount of freight earned was the precise amount which would have been earned had the quantity of lumber specified in the bill of lading been actually delivered at Matanzas. The action, 'therefore, was only upon the contract of affreightment. The answer admitted the contract as set up in the complaint. It admitted that there were delivered to the schooner to be transported to Matanzas 314 bundles and 18,445' pieces of white pine lumber, the. freight upon which,' according to the agreement, amounted to $959.06 ; but it denied that that amount was delivered, the defendants insisting that the plaintiffs. did -not deliver the full amount of lumber mentioned in the bill of lading, and that for that reason they were not entitled to recover the freight.

So it will be seen that there was no dispute between, the parties as to the amount of lumber delivered on board the ship in the port of Yew York, and the only question was, whether that full amount was delivered at Matanzas, as it was only upon the delivery of that amount that the plaintiffs could recover the freight to which they claimed to he entitled. The burden, therefore, lay upon the plaintiffs-of proving the delivery at Matanzas of the amount of lumber which they received on board the schooner at Yew York for transportation to the place first named. There was no pretense that the plaintiffs ever delivered that quantity of lumber to the consignee. On the contrary, they proved by their own witnesses that the quantity of lumber received by the consignee, instead of being 314 bundles and 18,445 pieces, was 314 bundles and 14,744 pieces, and that there was in fact a shortage of 3,701 pieces, amounting to 27,663 feet.

It is quite apparent that, upon this state of facts, the plaintiffs did not establish a right to recover against the defendants. Their action was brought purely upon the contract, and they could only recover by proving its performance as they had alleged it in the complaint. Failing, however, in the attempt to do this, they sought/ to recover for the carriage of the lumber actually delivered to the consignee, and this they wére permitted to do by the learned judge at the Trial Term, although there were no allegations in the complaint sufficient to warrant a recovery upon any such theory. To recover upon that theory it was necessary that they should make it appear that they had delivered at Matanzas all the lumber which they had received at Yew York and that the amount of it was in fact 14,744 pieces instead of 18,445 pieces — there being no question as to the number of bundles delivered.

Upon the case as presented by the pleadings, it was not proper that the plaintiffs should prove that a less quantity of lumber was delivered for transportation to Matanzas than was alleged in the complaint to have been so delivered. The complaint alleged that the quantity received for transportation was 314 bundles and 18,445 pieces, and that that quantity was actually transported and delivered at the port of destination. It was admitted by the answer that that quantity of lumber was actually delivered to the plaintiffs at ¡New Yorlc to be shipped to Matanzas. As the pleadings stood, it was not an open question as to the amount of lumber delivered for transportation to Cuba, and the plaintiffs were not in a situation to show that a less qriantity was shipped than they had alleged in their complaint and than was admitted by the answer. For that reason, therefore, the proof relied upon by the plaintiffs, that a less quantity than that mentioned in the bill of lading was delivered at Matanzas, was, under the admissions of the pleadings, an absolute bar to their recovery upon the contract of affreightment.

. But, passing that point, we are quite clear that, even if the plaintiffs had been at liberty, upon the pleadings as they stood, to establish that the amount of lumber delivered to them for transportation was less than the amount mentioned in the bill of lading, they utterly failed in their attempt to make that proof. Upon that.subject they proved that they delivered a bill of lading acknowledging the receipt for transportation of 314 bundles, and 18,445 pieces. They showed by the officers of the vessel that none of the lumber received was lost overboard during the voyage. They showed by the mate that, although he acknowledged the receipt of that amount of lumber, and the bill of lading wás based upon his acknowledgment, yet that he did not have personal knowledge that all of it was received ; a fact, by the way, which does not tend to prove that the bill of lading was not true. They then attempted to prove, by the testimony of the mate and the master, that all the lumber shipped was delivered at Matanzas; that they tallied it as it was delivered over the side of the schooner at that port, and that the amount tallied by them was less, than the quantity called for - by the bill of lading, but was the same as that acknowledged by the consignee to have been received, thus attempting to raise an inference that the quantity stated in the bill of lading was incorrect by showing that all the lumber tallied at Matanzas was not sufficient to constitute the amount stated by that instrument to have been shipped.

The mate testified that he tallied the deck-load of lumber and a portion of that which was delivered from the hold.' The master testified that he tallied the greater .portion of the lumber from the hold..

It is apparent that the force of this evidence depends, in the first place, upon the credit to be given to the master and the mate, and, in the second place, upon proof that those two officers tallied all the lumber that went over the side of the ship at Matanzas. It is not pretended that any one else tallied any of it, and it appears from, the testimony of the master that, although after the mate ceased to keep the list he began to do so, he was not present on the ship all the time while the lumber was being discharged. He says he took the tally of the lumber for the entire balance after the delivery of the general cargo began. But he subsequently says he was there every day, but not all the time. He says he went there each day to attend to business, and he went back to dinner and remained the rest of the day. So it is quite apparent from his testimony that, so far from keeping tally of all the lumber delivered, there was a large portion of each day in which it is conceded that he was not present on the vessel. It appears also from his testimony that the delivery of the lumber began on Monday, the twenty-fourth of ¡November, and that is the date of the first receipt. He says positively that there was a delivery of. lumber every day, and a receipt given each night for' the amount delivered during' the day, until the twenty-ninth, when a general receipt was given for a quantity, which included all the lumber that had been received by the consignee during the week. ■ It may be quite true that lumber was.'delivered over the side of the schooner every day; but it is just as true that, from the evidence produced here, it was not received by the consignee every day. There is no receipt of the consignees for lumber received on the twenty-fifth of ¡November, although there is such a receipt for the twenty-fourth, the twenty-sixth, two for lumber delivered on the twenty-seventh and one for the twenty-eighth, and a general receipt on the twenty-ninth. So it is quite apparent that, if the master is correct in saying that a receipt was given each night for lumber delivered during the day, there must have been lumber delivered on the twenty-fifth to somebody for which a receipt was not produced. This testimony, of . itself, throws so much discredit upon the statement of the quantity of lumber delivered over the side of the schooner that it would not do to rely upon it to overthrow the strong prima, facie evidence of the bill of lading as to the quantity received by the plaintiffs.

But, in addition to that, it was made to appear by the defendants that the precise amount of lumber mentioned in the bill of, lading was actually delivered in Mew York. There were produced the tally books kept in Mew York by the persons who checked the lumber delivered on board the schooner; and those very persons, whose duty it was to keep, and who did keep, those books and took account of the quantities delivered, testified to the' correctness of their books, and that there was actually delivered, as shown by the tally books, on board the schooner at the port of Mew York, the precise quantity of lumber called for by the bill of lading. So that we have on the one side in this case the bill of lading, reinforced by testimony of disinterested witnesses who kept account of the lumber, and who make it appear that the exact amount of lumber specified in the bill of lading was delivered. On the other side, to attack that we have only the statement of the master of the vessel, who was confessedly not present all the time while the lumber was being discharged at Mantanzas, and who is not able to account for one of the receipts wrhich he said was given, but he insists that the lumber receipted for by the consignee was all that the plaintiffs received. This evidence is entirely insufficient to overthrow the proof that the actual amount of lumber delivered at Mew York was that mentioned in the bill of lading. That being so it cannot be .denied that the plaintiffs did not perform the contract made by them and which they set up in their complaint, and for that reason they failed to show themselves entitled to recover.

The judgment was, therefore, erroneous and should be reversed and a new trial • ordered, with costs to the appellants to abide the event.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellants ■ to abide event.  