
    Beadle vs. Whitlock & Wallace.
    The plaintiff, being the owner of a canal boat, left her, in the fall of 1866, in the harbor of New York, in charge of D., with directions to him to have her tied up at the Atlantic dock, by M. who had been spoken to, to take her in charge for the winter, D., instead of delivering up the boat to M., ran her to Albany and took on board a cargo of oats, consigned to the defendants, at New York. After reaching the city, and collecting what freight he could, he abandoned the boat. The plaintiff, having discovered his boat, with the oats on board, in the harbor, took her in charge, tied her up to another boat, and called at the office of the defendants and notified a clerk, in their absence, that D. had used his boat without authority, and he should look to the defendants for the freight and storage. The defendants had paid the freight to D. who was to discharge the cargo; but be having omitted to do so, the defendants, after the boat had been recovered by the plaintiff, procured the cargo to be unloaded at an elevator, at the expense of the owner; which expenses, being a lien upon the boat, the plaintiff was obliged to pay, in order to release her. The defendants, by an agreement made after the boat had been unloaded, promised to pay the plaintiff for the use of the boat to store the oats in, if he could show that he was the owner.
    
      Held, 1. That the defendants were trespassers in interfering with the boat after the plaintiff had taken her in his charge, and had tied her up to another boat, assuming that D. had no authority from the owner to use her.
    2. That when the defendants gave orders for the unloading of the boat, they rendered themselves liable to the plaintiff, whether they knew he was the owner, or not. And if they used the boat afterwards, to store their grain, and unload it at an elevator, with the consent of the plaintiff, the law would imply a'promise, on their part, to pay him for such use.
    3. That if the defendants, by their use of the boat, brought a legal charge upon it which the plaintiff was obliged to pay, in order to repossess himself of his property, they would be liable repay it.
    4. That the subsequent promise of the defendants, to pay for such use, was founded upon a sufficient consideration to sustain an action; it being the common case of a promise by a wrongdoer to pay the damages sustained by the owner of property, and implying a waiver of the tort.
    5. That the waiver of the tort was a sufficient consideration to sustain a promise to pay for the use of the boat.
    6. That the promise made was conditional, to pay the plaintiff if he was in fact the owner of the, boat and as such entitled to the use.
    V. That as to the freight (the claim in the complaint being for the freight, and the use of the boat,) the plaintiff could not recover it, in this, or any other, form of action.
    8. That the defendants were answerable for the damages which the plaintiff sustained after they took the matter into their own hands, and actually interfered with the boat, after its arrival in New York.
    
      9. That the plaintiff could not recover the freight and also the charges for unloading the boat. That having failed to show that he was entitled to recover the freight, it might admit of question whether he could recover the expenses incurred by him in procuring his boat to be released from an attachment issued against the boat for the charges of the elevator, without an amendment of his complaint
    10. That the defendants having refused to pay the freight, the only remedy of . the plaintiff was to treat the defendants as trespassers, after their interference with tlie boat, on its arrival at New York.
    MOTION for a new trial, on case and exceptions, ordered to be heard in the first instance at the Greneral Term.
    The plaintiff was nonsuited upon the ground that there was no valid promise proved to pay the demand. The demand set forth in the complaint was, that the plaintiff, being the owner of the canal boat Geo. P. Hier, one S. S. Dwyre, without the knowlege or authority of the plaintiff, took said boat for the use of the defendants, to Albany, and took on board a load of oats, to wit, 100 bushels, consigned to the defendants in New York city ; and upon its arrival in the harbor, in New York, the defendants used said boat twenty days for the storage of the oats ; after which they caused her to be unloaded at an elevator, in consequence of which the plaintiff was obliged to pay $200 in money, charges upon said boat for the elevation of said grain, including costs of attachment proceedings taken against the boat for the charges of the elevator. That the defendants, in consideration of the plaintiff permitting them to take and receive said cargo from said boat, agreed to pay the plaintiff the value of the freight for the transportation of the grain from Albany to New York, with a reasonable sum for the storage and all the charges of the elevation of said grain as aforesaid; and that a reasonable sum was $400.
    The answer, after a general denial, states that one Martin, of the city of Albany, a forwarding and bóat agent, being duly authorized by the owner of the boat, shipped the cargo under a bill of lading, duly executed by the captain, to Glazier, Leonard & Co., the shippers; and that the expense of unloading, by custom, is chargeable to the party representing the boat, and is a lien upon the boat—not a charge upon the consignees; and that the defendants paid the authorized agent of said boat the freight on said cargo.
    On the trial, at the circuit, the plaintiff testified that he owned the boat and left directions to have her tied up at the Atlantic basin, at the close of navigation, in November, 1866; and the next thing he knew she was floating around the harbor with a cargo of oats, January 1, 1867. On the 2d of January he found her and tied her up to another boat at the Atlantic dock. After searching a day and a half he found that the defendants owned the oats, went to their office and was informed by the clerk that they had paid the freight to. the owner of the boat; and the plaintiff then informed him that the boat was his property, and that he was entitled to the freight; that he had not given any authority to have her taken out of the dock, but she had been stolen and taken to Albany and loaded. He further testified that before he left the office he said that before they unloaded the boat they would have to pay the freight and storage. Neither of the defendants were in the office at the time; nor did the plaintiff see them until about the 5th or 8th of February following when he called on Whitlock, one of the defendants, told him he was the owner of the boat; that he had not authorized any body to take the boat out of the basin or to use her, and that he must have his freight and storage; and that Whitlock replied that he would not pay it, until the plaintiff could prove he was owner of the boat; that if the plaintiff owned the boat he supposed he would have to pay it. In another place the plaintiff testified that Whitlock said he would pay him when he showed he was owner of the boat.
    After that, he called on Whitlock again; two or three times. Whitlock told Mm it was a bad job all round, and asked the plaintiff what he would take to settle. He told the plaintiff that he had ordered the boat unloaded.
    The use of the boat was proved to be worth $3 a day, and she was unloaded the 6th or 7th of January, 1867, and she arrived in the harbor the 12th of December, 1866. It was then proved that the plaintiff had to pay $102.34, the charges of elevating the grain and costs of discharging the lien of the attachment suit brought by the owners of the elevator, to collect their charges. The plaintiff called on Whitlock, and tried to get him to pay the charges, and he declined-
    It also appeared that one Dwyre run the boat in 1866, and that the plaintiff settled with him and paid bim off November 24, 1866, and requested Mr. Jewett Martin to take charge of his boat, who had charge of all the boats, and that'Dwyre was to give the key to Martin.
    It also appeared that the freight was worth $350.
    
      D. J. Mitchell, for the plaintiff.
    I. The court erred in granting the defendants’ motion for a nonsuit. 1. Beyond all question, the defendants were liable for the use of the plaintiff’s boat, for the purpose of storing the cargo of oats after its arrival in New York, (a.) The defendants were the owners of the cargo, and had the entire control of the same. (9 N. Y. 559.) (5.) The cargo was stored on said boat from December 12 to January 7, and the use of said boat was worth $5 per day for that purpose, (c.) The defendants have not paid any one for the storage of the oats. It cannot be pretended but that the defendants were liable to some one for the storage, (d.) It is clear the defendants would not be allowed to pay-the wrongdoer after notice from the true owner, and demand that payment be made to him. (e.) Again, the defendants admitted their liability to pay for the freight and storage, and ■ promised to pay the plaintiff therefor, when he proved he was the owner of the boat, (/.) To deny the plaintiff the right to recover for the storage, is to decide that the defendants can use the plaintiff’s boat for over twenty days as a storehouse, and be excused by the law from paying any one for said use. {g.) Truly, if the plaintiff cannot recover for the use of his own boat, no one else can. 2. The plaintiff was entitled to recover for the freight upon the cargo from Albany to Hew York. (a.) The cargo was transported upon the plaintiff’s boat. {b.) The boat was used without the plaintiff’s knowledge or consent, (c.) The defendants had no right to pay the freight to any other person except the plaintiff. 8. In any event, the plaintiff was entitled to recover for the value of the use of the boat in transporting said cargo from Albany to Hew York. (a.) The plaintiff’s boat having been taken by a stranger and used for the defendants’ benefit, without any authority from the plaintiff, the defendants thereby became liable to pay the plaintiff therefor. (&.) Payment to the wrongdoer is no bar to the plaintiff’s claim. 4. .The defendants were clearly liable for the amount the plaintiff was compelled to pay, to extinguish the lien that was fixed upon said boat in consequence of the defendants sending the same to the elevator to be discharged, (a.) The defendants, by sending the plaintiff’s boat to an elevator, to be discharged, thereby placed a lien upon the same, which the plaintiff was compelled to pay to prevent his boat from being sold. (Laws of 1862, p. 956.) (5.) This statute extends to canal boats. (45 Barb. 269, in point.) (e.) The defendants, after a full knowledge of all the facts, sent the plaintiff’s boat to an elevator, and caused a lien to be created upon the boat, which the plaintiff was compelled to pay to save his property, {d.) Both the complaint and answer allege that a valid lien was created upon the plaintiff’s boat by the unloading of the cargo. This fact is admitted by the pleadings, and cannot now be questioned. (<?.) The answer then claims that the defendants paid the freight upon the cargo to the plaintiff’s agent; this the evidence shows to be wholly false. (/.) The defendants, after full notice from the plaintiff of all the facts, caused said lien to be created upon the boat, and then refused to pay it. It would be monstrous for all the defendants thus to compel the plaintiff to -pay and discharge this lien, and then escape liability therefor.
    II. The complaint sets out the exact facts in the case, and the plaintiff was entitled to recover without any proof of a promise to pay. Besides, the defendants did promise to pay the plaintiff for the storage of the oats.
    III. The defendants moved for a nonsuit, and the court granted it upon the sole ground that no promise to pay was proved, before the delivery of the oats; therefore no other ground can be taken here, (a.) It was not necessary to prove a promise to pay. (&.) The defendants did promise to pay the plaintiff for the storage of the oats, (c.) The plaintiff never did deliver the oats. (d.) The defendants caused the oats to be unloaded at an elevator, and compelled the plaintiff to pay therefor $102.34.
    IY. The court erred in refusing to allow the plaintiff to go to the jury, as requested.
    y. We say the plaintiff had proved a clear cause of action against the defendants, and that the nonsuit in this case should be set aside and a new trial granted, costs to abide the event.
    
      A. Perry, for the defendants.
    I. The decision of the court,' in nonsuiting the plaintiff, was correct, and should bé sustained. 1. There was no contract, express or implied, between the plaintiff and defendants, for the transportation of the oats, holding them upon the boat in New York, or unloading them. The defendants contracted with Dwyre, and with him only. Had Dwyre acted as the agent of the plaintiff, or had the plaintiff adopted *his acts, the defendants might be held liable in this action. But the plaintiff, at the time, in his complaint and in his testimony upon the trial, repudiated the agency of Dwyre. The service was rendered by Dwyre and not by the plaintiff. The plaintiff was a stranger to the transaction. He would not have been liable for supplies or repairs to the boa,t. (Young v. Brander, 8 East, 10.) “It is true,” says Lord Ellenborough, “ that the owners of a ship are liable for repairs ordered for them or for their benefit by their master, but it was never heard of, that if a stranger ordered repairs for another’s ship or carriage, the owner was liable for such repairs. Suppose a pirate ran away with a ship, would the owner be liable for repairs ordered by him ?’ ’ The plaintiff had no lien on the goods for freight. (Marquand v. Barnes, 6 Ell. & Blackb. 232.) Nor was he liable for wharfage. (Philadelphia v. Naglee, 1 Ashm. 37. 1 Pars. Mar. Law, 251.) 2. The alleged promise of the defendants,- to pay storage, was without consideration. A past or executed consideration is not sufficient to sustain a promise founded upon it, unless there was a request for the consideration previous to its being done or made. (1 Pars. on Cont. 391. Frear v. Hardenbergh, 5 John. 272. Bartholomew V. Jackson, 20 id. 28.) No request to the plaintiff can be implied, for it expressly appears that the request of the defendants was made to a stranger to the plaintiff. There was no moral or legal obligation on the part of the defendants to pay the plaintiff freight or “storage.” They had paid the freight to Dwyre in good faith. There is no evidence that they were liable to pay “storage” or damages, in the nature of demurrage, to any one. Such liability could only arise from express contract, or from neglect of the defendants to receive the cargo within a reasonable time after an offer by the carrier to deliver. Demurrage, properly so-called, is only payable when it is stipulated for in the contract of affreightment; but if the vessel is detained an unreasonable time by the freighter or consignee, the owner of the vessel may recover damages in the nature of demurrage for such detention. (Clendaniel v. Tuckerman, 17 Barb. 184. Cross v. Beard, 26 N. Y. 85.) It does not appear that there was any offer to deliver this cargo of oats before it was delivered. Nor does it appear but that by the contract of affreightment Dwyre was to hold the oats in ¡New York for the length of time he did, in consideration of the freight paid. 3. The promise of the defendants was upon the condition that the plaintiff proved to them that he was owner of the boat, and the condition was not performed before suit brought; the plaintiff therefore, was not entitled to recover, (a.) The plaintiff did not agree to prove that he was owner of the boat. The promise of both parties must be concurrent and obligatory, at the same time, to render either binding. (The Utica and Schen. R. R. Co. v. Brinckerhoff, 21 Wend. 139.) (b.) The plaintiff did not make the proof, or attempt to do so. If the making of the proof was the consideration for the promise, it should have been made before suit brought. (Brooks v. Ball, 18 John. 337.) (c.) No such consideration is alleged in the complaint. 4. The statement of Whitlock, that he supposed he would have to pay if the plaintiff proved he owned the boat, cannot be treated as an admission of the defendants’ liability. A party is not estopped by his admission or assertion of a conclusion of law. (Brewster v. Striker, 2 Comst. 19.) 5. The sum paid by the plaintiff for elevating the oats and costs of attachment proceedings against the boat was in no way chargeable to the defendants. The carrier was bound to deliver the property. In the absence of express agreement or usage to the contrary, he was required to take the cargo from the boat himself or at his own expense. The carrier’s undertaking to transport the goods includes the duty of delivering them in safety. (Demott v. Laraway, 14 Wend. 225. Parsons v. Hardy, Id. 215. Miller v. Steam Nav. Co., 6 Sold. 431.) The evidence did not show that any lien existed against this boat, for unloading her cargo. It did not appear that any debt had been contracted by the master, owner, charterer, builder or consignee of this boat, or by the agent of either of them on account of unloading her. (See Laws of 1862, ch. 482, § 1. 4 Gen. Stat. 653.) This statute does not apply to canal boats. (Many v. Noyes, 5 Hill, 34. Hicks v. Williams, 17 Barb. 523.) 6. There was no conversion of the boat by the defendants. This is not a case where the plaintiff can waive the tort and bring assumpsit. That can be done only when the wrongdoer has converted the property into money. (Osborn v. Bell, 5 Denio, 370. 37 Barb. 270. 6 N. Y. 112.)
   By the Court, Morgan, J.

The statements of the plaintiff, when compared together, lead to the necessary conclusion that he left his boat in charge of Dwyre, who" had run her during the season of 1866, with directions to him to have her tied up to the Atlantic dock for the season, and that he had spoken to Martin, who had charge of the boats there, to take her in charge; that Dwyre, instead of delivering up the boat to Martin, to be fastened up to the dock, run her back to Albany and took on board a load of oats, consigned to the defendants ; and after reaching the harbor, in New York, and collecting what freight he could, he abandoned the boat to take care of itself; that the plaintiff then discovered his boat, with the oats on board, in the harbor, and took her in charge, and tied her up to another boat, intending to collect the freight and the demurrage of the consignees, and for that purpose called at the office of the defendants and notified the clerk, in the absence of the defendants, that Dwyre had used his boat without authority, and he should look to the defendants for the pay for storage and freight. There is no direct evidence that the consignees had paid the freight to Dwyre, although they declared they had done so. The boat, it seems, was used to store the oats in, with the consent of the plaintiff, until they could be discharged. They were afterwards discharged by the directions of the defendants. So much appears by the case. There is also reason to believe, from what transpired on the trial, that the defendants paid the freight to Dwyre, who was to discharge the cargo; and in consequence of his omission to unload, the defendants procured her to be unloaded at ah elevator at the expense of the owner; which expense the plaintiff was obliged to pay, in order to release his boat, as the law, it seems, gives to the owners of the elevator, in such a case, a lien upon the boat, for the charges of unloading.

The defendants promised to pay the plaintiff for the use of his boat to store the grain, if he could show he was the owner, but this agreement was made after the boat had been unloaded; and for that' reason, it is claimed by the defendants not to be binding upon them. In my opinion, the defendants were trespassers in interfering with the boat after the plaintiff had. taken her into his charge, and had tied her up to another boat. This would be so, assuming that Dwyre had no authority from the owner to use her. And upon the plaintiff’s statement this fact must be assumed, on this motion.

It is said that notice to the clerk in the office of the consignees was not notice to the defendants of the plaintiff’s claim. But this is not important, for whoever meddled with the boat afterwards, without the assent of the plaintiff, express or implied, would be answerable in trespass for any damages which the plaintiff sustained in consequence of such unwarrantable interference.

The plaintiff- being unable to see the defendants personally, doubtless trusted that they would pay him, at least, for the use of the boat thereafter, and did not further interfere, after giving notice of Ms claims to the clerk in charge of the office. But the defendants proceeded afterwards, at their own risk, as to the ownership of the boat, Dwyre not being there, to uMoad it according to his contract and the usage in such cases. If the defendants could have stood aloof without. any actual interference, and could have obtained the cargo by the aid of Dwyre, availing themselves only of the wrong of Dwyre to obtain their property, I can see that they would not have made themselves responsible to the plaintiff. But unfortunately for the defendants, Dwyre disappeared from the scene, and it became necessary for them to give orders for uMoading the boat. At tMs point of time they doubtless rendered themselves liable to the plaintiff, whether they knew he was the owner, or not; and if they used the boat afterwards, to store their grain and unload it at an elevator, with the consent of the plaintiff, the law would imply a promise on their part to pay him for such use; and if by their use of the boat they brought a legal charge upon it which the plaintiff was obliged to pay in order to repossess Mm-self of his property, I am of opinion that the defendants would be liable to repay it.

• TMs brmgs us to the only question of difficulty to be disposed of on this motion. It is said that if the use of the boat by the defendants, after its arrival in Hew York, was without the consent of the plaintiff, the defendants are only liable in an action of trespass. I think we have held otherwise, though the point is not without difficulty. (See Hill. on Torts, 44.) It is held,- in some cases, that the defendant is estopped to say there was no promise, and that he took the property wrongfully. Waiving this question, therefore, I think it is clear that the subsequent promise of the defendants to pay for such use' is founded upon a sufficient consideration to sustain an action. ° It is the common case of a promise by a wrongdoer to pay the damages sustained by the owner of property, and implies a waiver of the tort.

The waiver of the tort is a sufficient consideration to sustain a promise to pay for the use of the boat. It is said that the promise in this case, as sworn to by the plaintiff, was conditional; and I think it was conditional to pay the plaintiff if he was in fact the owner of - the boat, and as such entitled to the use. It may be a question whether the plaintiff can recover the amount paid by him to release the boat from the lien of the attachment. The claim in the complaint seems to be for the freight and the use of the plaintiff’s boat. As to the freight, I am unable to discover upon what ground the plaintiff can recover it, in this or any other form of action. Up to the time the boat was abandoned by Dwyre, there is "no pretence that the defendants had in any manner interfered with the plaintiff’s rights. But I think they are answerable for the damages which the plaintiff sustained after they took the matter into then-own hands and actually interfered with the boat after its arrival in Hew York. So far as the claim rested upon contract between Dwyre and the defendants, the plaintiff could not recover the contract price without adopting the agency of Dwyre; and if Dwyre had been paid the freight it would devolve upon him or the plaintiff to unload the boat. Certainly the plaintiff cannot recover the freight and also the charges for unloading the boat. Having failed to show that he was entitled to recover the freight, it may admit of question whether he can recover the expenses incurred by him in procuring his boat to be released from the attachment, without an amendment of his complaint. An action for the freight eo nomine would proceed upon the ground that Dwyre was his agent, or that the plaintiff has chosen to adopt his contract by which freight was earned. But the case itself does not show that the plaintiff ever" intended to adopt the acts of Dwyre, unless he could thereby persuade the defendants to pay Mm the freight, instead of paying it to Dwyre. The defendants havmg refused, I think the oMy remedy of the plaintiff is to treat the defendants as trespassers after their interference with the boat on its arrival in New York.

[Onondaga General Term,

June 29, 1869.

Bacon, Foster, Mullin and Morgan, Justices.]

Whether the complaint will require to be amended before the plaintiff could properly claim to recover the expenses paid by him to obtain possession of Ms property, is a question I have not considered.

In my opmion, the motion for a new trial should be granted, with costs to abide the event.

New trial granted.  