
    David C. Woolsey et al., Resp’ts, v. Hugo Funke, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 15, 1890.)
    
    'Charter party—Construction of contract.
    Among other provisions of a charter party of a passenger steamboat plaintiffs, the owners, were to furnish all supplies, except water, the cost of which defendant was to pay. The boat ran between New York and College Point, Long Island. She was not able to make proper connections "through defendant failing to furnish the ¡vessel with water in sufficient "time to enable her to leave her landings at the time fixed, and he refused to continue to employ her. Held, that from the actions of all parties and the evidence the court was right in finding that the defendant was not justified in so abandoning the steamer as the plaintiffs were not to furnish the water.
    Appeal from judgment of supreme court, general term, second department, affirming judgment in favor of plaintiffs.
    
      Ira JD. Warren, for app’lt; Mark Ash, for resp’ts.
    
      
       Affirming 17 N. Y. State Rep., 627.
    
   Beckham, J.

The defendant appeals from a judgment of affirmance by the general term, of a judgment against him in favor of plaintiffs in this action, which, is brought to recover the damages plaintiffs allege they have sustained by reason of defendant’s violation of a charter party entered into between them for the hiring of the steamer Emeline. The boat was chartered for the purpose of transporting passengers between New York and College Point, on Long Island. The agreement was made on the 12th of February, 1887, and the defendant’s possession of the boat was to commence on the 21st of May, and terminate on the 10th of October, 1887.

The boat was delivered to defendant in due time and was run hy him until the 31st of July, when he' gave notice to plaintiff’s ■captain on board the steamer that the boat was no longer in his employ, because, as he alleged in the notice, the plaintiffs had repeatedly violated the terms of the charter party and continued to do so. The plaintiffs then sought other employment for the boat, and found it, but at a less price than that provided for in the charter party, and having given the defendant notice that they did not receive the boat back excepting on defendant’s account, and that they should hold him responsible for any loss, they have commenced this action to recover the difference between the price named in the charter party and that which they were able to earn by the steamer during the existence of such agreement.

The defendant, in his answer, set up various violations by the plaintiffs, and alleged that they did not furnish the vessel with a sufficient crew and all the supplies required by the vessel; that the vessel did not perform six trips from New York to College Point as agreed ; that the trips were performed irregularly; that the crew was insubordinate and incompetent, and insulting to the defendant and to passengers; the landings were made unskillfully and in a manner detaining and dangerous to passengers, and calculated to, and which did injure and damage the defendant.

The trial court found against the defendant upon all these issues. He claims that the courts below have misconstrued the obligations ■of the plaintiffs as to the furnishing of water by them to the steamer, and that the plaintiffs did not furnish such water and have violated their contract, and he asserts that the effort of defendant to furnish it was no excuse to them. The charter party contained a provision which is as follows: “ The parties of the first part ” (that is the plaintiffs) “ further agree to furnish said vessel, at their own expense, with a sufficient crew of not less than fifteen hands, and all supplies required by said vessel during the term aforesaid, except water, the cost of which water and all wharfage incurred by said vessel during the term aforesaid the party of the second part agrees to pay.”

The. defendant claims here that the true construction of this provision requires the plaintiffs to furnish the water, and that the only obligation on the part of the defendant was to pay the cost thereof. The importance of this construction becomes apparent when it is seen that the trial court found that the delay in leaving on time was caused by the failure of the defendant to comply with his obligation under such charter party to furnish the vessel with water in sufficient time to enable the vessel to leave her landings at the time fixed by the defendant.

If this obligation rested upon the defendant, and if it had not been by him fulfilled, and his failure to fulfill it was the reason of the delay, then of course, so far as delay figured as a reason foían abandonment of the vessel by the defendant, it furnished no legal justification for his action.

I think the language is somewhat ambiguous. The plaintiffs are to furnish all supplies, except water, the cost of which water the defendant is to pay. The defendant says he has only contracted to pay for the cost of the water, but not to furnish it. Have the plaintiffs in this charter party made any specific agreement-to furnish the water? Not at all. They have agreed to furnish all supplies required by the vessel, except water. The defendant-has agreed to pay for the cost of it. If the plaintiffs have made no agreement to furnish it, the agreement of the defendant is fully carried out if he contracts with some one else to furnish the water to him and he agrees to pay him for it. Certainly the plaintiffs, would have no right to complain that the defendant procured the-water from some one other than themselves, and in that way paid the cost of it. They would have no such right, because as it-seems to me there is nothing in the contract binding the defendant-to take the water from them, and there is certainly no language on their part by which they bind themselves to furnish it. It is claimed, however, that there is an implied obligation on the part of the plaintiffs to furnish the water, founded upon the peculiar character of the language used, where they contract to “furnish all supplies, except water, the cost of which water” the defendant, agrees to pay. It is claimed that the only use of the exception is-to qualify the obligation of the defendant, leaving that of the plaintiffs exactly the same in the first instance with regard to the water as with regard to all the other supplies, and that they are still bound to fúrnish the water just as much as, for instance, the coal, only the defendant must pay for such supply of water.

I incline to the other view for the reasons already stated. I cannot see that the plaintiffs have anywhere promised to furnish the water, but on the contrary, by their language they have excepted that article from then' obligations to furnish the boat with supplies. Nor can I see where the defendant has bound himself in any way to take the water furnished by the plaintiffs. But if I am not clearly right in this interpretation of the language, it. must at least be admitted, as it seems to me, that the language is-somewhat ambiguous or indefinite. Under such circumstances-the practical interpretation of this agreement by both parties is a-consideration of very great importance.

As was said by Mr. Justice Swayne in Insurance Company v. Dutcher, 95 U. S., 269, 273, “the construction of a contract is as much á part of it as anything else. There is no surer way to find out what parties meant than to see what they have done. Self interest stimulates the mind to activity and sharpens its perspicuity. Parties in such cases often claim more, but rarely less than they are entitled to. The probabilities are largely in the direction of the former.” Let us see then what the parties have said and done-in regard to this matter.

One of the plaintiffs proved by his own evidence, which was. wholly unobjected to, that in an interview he had with defendant^ before the execution of the contract, the latter showed him a proposed schedule of trips for the steamer, and asked if she could do it. The plaintiff asked what kind of water he (defendant) was to get for the use of the vessel. Defendant said they had water at College Point, and he would continue the water pipe to the docks. ■ He said the water was seventy pounds pressure. Plaintiff told him that he thought without doubt the boat could make the proposed time if he (defendant) gave her time for water, and in respect to water defendant said she could get sufficient water in ten minutes.

The defendant himself was examined in his own behalf on the trial, and in speaking of his interview with one of the plaintiffs before the execution of the charter party, defendant said, “ as to the charter price, he (plaintiff) hadn’t quite decided that day, but speaking about the wharves and water, these two items I had to furnish. * * * I said to him that the water main of the village of College Point ran down nearly to where I had begun to build the dock and I would bring a pipe down to the end of the dock, so the hose could be attached there and he could get a supply of water there. * * * After that time, as soon as the charter party was signed, I ran a pipe down to the dock. * * * In pursuance of the conversation I had I built a dock and put a pipe down to the end of it. I connected it with the main forming part of the water works of the village."

One of the plaintiffs says that the pressure on the pipe, instead ■of seventy pounds, was probably not half that, and it took three-quarters of an hour to fill the tanks of the steamer, instead of ten minutes. The plaintiff called defendant’s attention to this state of things, and he answered, “ How can we remedy it ?"

In his answer the defendant goes into detail as to the various violations of the contract by the plaintiffs, as I have enumerated them above, but he nowhere alleges specifically a violation of the agreement on the part of the plaintiffs by not furnishing the .steamer with water.

Upon the trial, on the contrary, the whole burden of the defendant was laid upon proving the various violations of the agreement which he had set up in his answer, but not any evidence as to the failure of the plaintiffs to furnish water. The record shows that the defendant contended for the violations as already stated, and he claimed that the state of the boiler, its leakings and general condition, and the awkward and dilatory manner in which landings were effected, caused the failure of the boat to make its trips and keep up to schedule time, and for those reasons, as well as ■on account of the behavior of the crew towards passengers, and the failure to make landings when expected, the defendant urged that he had a right to refuse to go on with the contract. He showed by one of his witnesses (Beach) that in his opinion the delays were not caused by the water, and it is evident from the testimony of the defendant that he was of the same opinion, and that his ground for action was the violations already spoken of.

From this survey of the actions of all parties, and from the evidence of both parties to the contract, it is clear that they interpreted its obligation in the same way that I have done, and the defendant never thought that the plaintiffs had to furnish water, while he had only to pay its cost, until after the trial and the finding of the court that the failure of the steamer to keep time was on account of defendant’s failure to furnish the water.

We think the construction of the contract given below was the ■ true one. This leads to an affirmance of the judgment.

All concur.  