
    Michigan Steamship Company, Appellant, v. American Bonding Company of Baltimore, Respondent.
    
      Charter pan'ty—when the term begins — when the vessel must be ready — a notice by the charterer that it woiild not be ready at the time faced to fulfill the contract is a breach thereof—effect of the owner agreeing not to exact hire — it is not a modification of the charter party which will discharge the cha/rierer’s surety — effect of thereafter chartering the vessel to others—effect of a failure to use proper diligence to recharter — it might be a partial defense to a claim for damages for breach the of the cha/rter party. ■ ,
    The owners of a steamship chartered it for a period of five years from the date of the first loading of the said vessel by a charter party executed October 16, 1902, which provided that the owner should forthwith, upon the execution of ' the contract, convert the steamship into a tank steamer and that the work of conversion should be completed on or before March 12, 1903, “ on or before which date also said steamer shall enter the service of Charterer.”
    The complaint in an action brought by the owner of the steamship against the ■ surety upon a bond given by the charterer to secure the faithful performance by the latter of the provisions of the charter party, alleged that after the exe- ' cution of the charter party the plaintiff- proceeded to convert the steamship into an oil tank and that, while the work of conversion was in progress, the , charterer requested the plaintiff not to press the conversion and informed the . plaintiff that it would not be ready to enter upon the performance of the contract in the month of March, 1903; that thereupon it was understood between the plaintiff and the charterer that no hire should be charged the charterer by the owner during the period between March 12, 1903, and the time- when the ' steamer should be ready for delivery to the charterer; that while the steamship was being converted the plaintiff notified the charterer that it was ready to enter .upon the execution of the charter party; that during the month of November, 1903, the charterer notified the plaintiff that it would be unable to use the steamship during the month of January, 1904; that thereupon the plaintiff, with the consent of the charterer, chartered the steamship for other purposes; that about the month of March, 1904, -the charterer! notified the plaintiff that it would be unable to use the steamship at all;.that thereupon the plaintiff, with the consent of the charterer,' 'chartered the steamer to another party for the balance' of the period specified in the charter party and that the ' defendant consented to such recharter. .
    
      Meld, that it was the intention of the parties to the charter party that the period over which the contract was to extend w,as to commence at the daté of the first . loading of the steamship or. on March 12,1903, if she was not loaded before;
    That, under the contract; the plaintiff was bound to have the steamship ready to . enter the service of the charterer on or before March, 12, 1903;
    That when, prior to March 12, 1903, the charterer notified the plaintiff that it would not then be ready to fulfill the contract, there was a breach of the contract by the charterer which would have justified the plaintiff in at once . treating such notification as a breach of the contract;
    That the fact that the plaintiff, after such notification, agreed that no hire should be exacted of the charterer between March 12, 1903, and .the time when the steamship was ready for delivery, did not, independent of whether or, not such agreement was founded- upon a sufficient consideration, operate as a modification of the contract, for the reason that there was no agreement between the parties that the steamship should not be ready for the charterer on March 12, 1903, or that the commencement of .the term of the charter should be postponed until the steamship was actually in the possession of the charterer; j
    
    That, consequently, the complaint was not demurrable on the. ground that it showed a modification of the contract which would discharge the surety from liability under the rule that a surety is discharged- by any alteration of the contract to Which his. guaranty applies whether the alteration is or is not material or injurious to him;
    That a mere agreement between the parties to a contract that one of them will Mot enforce a breach of the contract is not a modification of the contract which will discharge the surety of the party guilty of the breach;
    That averments in the defendant’s answer to the effect that after the charterer had been guilty of a total breach of the charter party, the plaintiff rechartered the steamer só as. to reduce as much as possible, the damages.which the defendant was called upon to pay, did not constitute a defense;
    That averments in the defendant’s answer to the effect that after the execution of the bond, by a binding, agreement-between the charterer and the plaintiff, without the knowledge or consent of the defendant, the charter party was ;altered in important respects; that the time fixed by the charter party within which the said steamship should be converted into an oil tank and within ' which she should enter the service of the charterer, was changed and enlarged, and that, in pursuance of said agreement, the steamship was not converted into an oil tank on or before March 12, 1903, and was not tendered until many months thereafter, constituted a complete defense to the plaintiff’s cause of action;
    That averments in the defendant’s answer that the plaintiff did not use proper diligence to recharter the steamship did not constitute a complete defense, although they might possibly be sufficient as a partial defense.
    Appeal by the plaintiff, the Michigan Steamship Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of January, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the second, third and fourth separate defenses set forth in the defendant’s amended answer.
    
      Everett P. Wheeler, for the appellant.
    
      Harrington Putnam, for the respondent.
   Ingraham, J. :

The instrument sued on in this action is a bond by which the Houston Oil Company of Texas (therein called the “ charterer ”), as principal, and the American Bonding Company of Baltimore, as surety, are held and firmly bound unto the plaintiff “ in the sum of the amount of the actual damages sustained by it by reason of any breach or breaches by the Charterer,” of the provisions of a charter party, the entire aggregate amount of which damages shall not in any event exceed the sum of $100,000 ; “should any breach or breaches be made by Charterer within the first three years of the • period of said Charter Party, and if the said Charter Party shall continue in force into the fourth year of the period of the Charter Party, then the entire damages shall be limited to such as may be actually sustained by Owner by reason of any breach or breaches made by Charterer during the fourth year of the period of the Charter Party, the entire damages in no event to exceed the sum of Sixty-six Thousand ($66,000) Dollars; and if the said Charter Party shall continue in force into the fifth year of the period of the said Charter Party, that then the entire damages shall be limited to such as may be actually sustained by Owner by reason of any breach or breaches made by Charterer .during the fifth year of the period of the said Charter Party, in. no event to exceed the sum of Thirty-three Thousand ($33,000) Dollars.”

This instrument recites the fact that the Houston Oil Company has chartered from the plaintiff the steamship British Queen, to be renamed Lansing, for a period- of five years, as would' more fully " appear by charter party .entered in to on the 16th day of October, 1902, and that it was a condition precedent to the execution of said charter party that the said.charterer should give a bond guaranteeing compliance by said charterer' with the provisions of section 18 of said ■ charter party, which section by reference Was thereby made a part of this instrument. The charter party recited in this agreement was not made a part of the complaint, but by a stipulation between the parties'it was agreed that on the argument the charter party referred to might be: considered by- the court as though expressly embodied in and made a. part of the complaint. The 18th clause of the charter party referred to in' the bond is substantially repeated in the condition of the undertaking, that the aggregate amount of the damages to be paid by the' charterer shall' not in any event exceed the sum of $100,000 for any breach or breaches made within the first three years, $66,000.for a breach in the fourth year and $33,000 for a breach in the fifth year. <

The complaint alleges, the execution of ..this, charter party ; that by it the plaintiff chartered to the Houston Oil Company of Texas the steamship British Queen, to be renamed Lansing, for the period of five years from the date of the first loading. .of the said "vessel, which shall be the period of this charter. After regulating the use to which this steamer could, be put, the charter party pro-, vided that the owner should forthwith, upon- the -execution of the contract, at fits cost and expense, convert the said steamship into ■an oil tank, -.tight, staunch and strong, and- in every way fitted for the. voyages contemplated in the charter party, in which" condition it should be maintained by the owner 'at -its- cost and exp'ense during the period of the charter party; that the work of the said conversion should be proceeded with immediately and should be prosecuted’and completed with all due dispatch, .and finished on or before the 12th day of March, 1903, “ on or before which date also said steamer shall enter the service of Charterer.” The com plaint further alleges that after the execution of this charter party the plaintiff proceeded to and did, at its own; cost and expense, which expense exceeded the sum of $100,000, convert the said steamship into an oil tank, tight, staunch and strong, and in every way fitted for the voyages contemplated in said charter party ; that while said work was in progress the said oil company requested that the work of such conversion should not be pressed, and informed the plaintiff that it was not ready to. take up and begin the. direction of a port to which the said steamship Lansing should repair to enter upon the execution of such charter, nor would it be ready to direct such port nor to load the said steamer in the month of March, 1903, and thereupon in diminutidn of the liability of the defendant on the said,bond it was understood between the plaintiff and the said oil company that no hire should be charged the oil company by the plaintiff during the period between March 12, 1903,, and the time when said steamer should be ready for delivery to the oil company ; that while the said steamship was being converted, in the manner required by said charter party into an oil tank steamer, plaintiff notified said Oil Company that it was ready to'enter, upon the execution of said charter party and to send the said steamer to such port in the Gulf of Mexico as the charterer should designate, pursuant to the provisions of .said charter,' But during the month of November, 1903, said Oil Company notifiedthe plaintiff that it would be unable to use the said steamer during the month of January, 1904, in and about, the business called for by said charter party, and altogether failed to designate any port to which it should be sent.” The complaint further alleges that thereupon the plaintiff, with the consent- of the oil company, chartered the steamer for other purposes, for other voyages, and that about, the month of March, 1904, the oil company notified the plaintiff that it was unable to use said steamer at all, and it neglected and refused to designate any port of loading to which it should be sent by the plaintiff; that thereupon the. plaintiff, x^jjth the consent and.approval of the oil company, chartered the said steamer to the Standard Oil Company for the balance of the period specified in said charter, and such charters were executed at the request of the-Houston Oil Company for the purpose of reducing the damages which would otherwise have been sustained by the plaintiff by reason of the breach of the said charter party by the said oil company and that the defendant consented to such recharters. The complaint further alleges that the total loss caused the plaintiff by reason of the breach of the charter party aforesaid by the said oil company'during the first three years of the period of the charter party between the plaintiff and the said oil company very much exceeded the sum of $100,000 for which the defendant bound itself to the plaintiff .; that the said oil company has neglected and refused to pay to the plaintiff the amount of said damages or any part thereof.

The court below held that the matters alleged in the second and fourth separate defenses were insufficient, but that the demurrer thereto must be overruled owing tp the infirmities of the complaint; that the contract between the oil company and the plaintiff extending the date fixed for the completion of the work of alteration of the steamer and the commencement of the charter hire discharged the surety; that it was the defendant’s legal right that the ship should be completed according to the contract and that, if the plaintiff made default, the defendant should be relieved of its liability; that it was also the defendant’s legal right that the ship should be completed and tendered to the oil company on or before March 12, 1903, and the latter put to a performance or default on its part at that time, so that the defendant might then take measures for its own protection by ^adjusting the. damages with the plaintiff and proceeding immediately against the oil company for recoupment.

The question, therefore, is, whether this contract between the plaintiff and the oil company, the defendant’s principal, as alleged in the complaint, was such an alteration of the Contract as would discharge the surety. T’y'j charter party in express terms was to continue for five years rom the date of the first loading of the T , said vessel, which shall ® : the period of this charter,” and the conversion of the steamer M1-’ Id be proceeded with immediately and “shall be finished on or bv he the 12th day of March, 1903, on or before which date also say-steamer shall enter the service of Charterer.” Reading these tv clauses together, I think that it was the intention of the parties tb. .• the period over which the contract was to extend was to commenc at the date of the first loading of the steamer, or, if she had i . been loaded before, dn the 12th of March, 1903. So that the j’eriod of five years would commence to run, if the vessel had not been loaded prior to that time, on the 12th of March, 1903. There was no obligation of the plaintiff to have the steamer finished before that date; but upon that date, if the conversion of the steamer had been completed, it was to enter the service of the charterer, and the term of the charter would in that event be five years from the 12th" of March, 1903, and the defendant became obligated as a surety for the damages actually sustained by the plaintiff by reason of any breach or breaches of this charter party by the charterer. .

There can be no doubt of the rule that a surety is discharged by any alteration of the contract to which his guaranty applies, whether material or not, and that the court will not inquire whether it is "or is not to. his injury. (Antisdel v. Williamson, 165 N. Y. 372.) If there was any alteration of the contract between the oil company and the plaintiff, without the consent of the surety, the surety is . discharged. Under the contract the plaintiff was bound to finish the repairs of the steamfef and have her ready to enter into the service of the charterer oh" or before March 12, 1903. "Before that period arrived the oil company requested that the work of conversion of the steamer should not be pressed, and informed the plaintiff that it was not ready to take up and bégin the direction of a port to which the said steamer should repair to enter upon the execution of such charter. There is no allegation that, based upon this statement, there was any agreement by which the beginning of the term of the charter party was to be postponed, or in fact any assent by the plaintiff to any. modification of the terms of the charter party. The term of the charter of the steamer was. still to commence on the 12th of March, 1903. This notice was in effect a breach of the charter party by the oil company, for it notified the plaintiff that it would not perform the charter party in that respeqt. In view of .this notice to the plaintiff by the oil company, I think the plaintiff, would have been justified in at once treating it as a breach of the contract by the oil company, and in commencing an action for. damages against the oil company and the defendant, its surety. Nor would the failure of the plaintiff to complete the alteration of the ship after such notice have relieved the defendant from its obligation under the bond.

But it is alleged that, based upon this notice1 that the oil company would; not be able to complyvwith the contract and. use the steamer in March, 1903, it Was agreed that iio hire of the vessel should be , charged the oil company by the- plaintiff between-the 12th of March,.' 1903, and the time when said steamer should be ready for delivery" . to the oil company. • Is that an alteration in the contract between the plaintiff 'and the "oil- company ?- There was no agreement that the steamer should not be ready in March, 1903. It is not alleged that the steamer was not ready in March, 1903. . There was no- ' agreement" that the commencement of the term of the charter should be postponed until the steamer was actually in the possession of the charterer. The term still ran from March 12, 1903, for five years but the plaintiff waived, the obligation of the charterer to pay for-the. vessel for an indefinite period not specified. -Suppose that on ■ the twelfth day of March the plaintiff. had notified- the; cliartérer t'hat the steamer was ready, and had demanded that the charterer-designate a port at which she was to be loaded, there can be no-doubt, I think, but that under this arrangement the charterer would." have been bound to desígnale the port and to load the steamer when ‘she arrived there; and would have been responsible for a failure to-comply with its agreement,. By the contract, both the " bond and the charter party contemplated the continuance of this charter party. for fiv.exyears.1 The bond was to provide indemnity, for a breach or-a succession of bleaches' during the period it was to run.' The " surety- was liable for all damages sustained by the- plaintiff' because-of such breach or breaches, but its liability was not to exceed the sum of $100,000 should a breach or breaches be made- by the charterer within' the'first three.years of the period of said charter party, the suim-of $66,000 for any breach or breaches in the-fourth, year, and the sum of ,$33,000 for any breach or-breaches made by the charterer during the fifth year. So that the fact that - there- was a ■ breach of the contract hy the defendant’s principal in the first year, or before or at the beginning of the contract, would not discharge the obligation of the defendant for subsequent breaches. According to this allegation of the complaint, there was a' breach of the contract on March .12, 1903, when the -contract Was to commence foy then it was that the charterer notified the plaintiff that it would not fulfill the contract or comply with the obligations- to be then. performed. The plaintiff then waived that breach, without any agreement to postpone for a day the completion of the contract on the part of the charterer, and without any agreement by which the original charter party was modified. It simply agreed that it would' not require the charterer to pay for the steamer until it was ready for delivery. I do not think that this can be said to be a modifiea- . tion of the original charter party, for a breach of which the defendant had agreed to pay the plaintiff any damages that it should sustain-.

The plaintiff then notified the oil company that it was ready to enter upon the execution of such charter party, and to send the steamer to such port in the Gulf of Mexico as the charterer should: designate., pursuant to the provisions of the charter. But during the month of November, 1903, the oil company notified the plaintiff that '’it would be unable to use said steamer during the month of January, 1904, in and about the business called for by said charter party, and altogether failed to designate any port to which it should be sent. Here was another breach of the contract by the charterer. It had notified the plaintiff' that it was not ready in March, and again notified it in November that it would not be ready in January, 1904; and the plaintiff then, as it was bound to do, endeavored to reduce the damages by chartering the steamer to others. This certainly was not a change of the contract, or a violation of the obligation of the plaintiff to the defendant. And finally, about the month of March, 1904, the oil company notified the plaintiff that it would be unable to use the saíne steamer and could not designate any port to which she should be sent for loading, which was also a breach of the contract.

It is for the balance between what the plaintiff would have received had the oil company carried out its agreement and what it actually received for the use of the steamer that the plaintiff seeks to recover of the defendant. I agree that if there had been any contract* between them binding upon the parties to the charter party that modified it in any way, the defendant would have been discharged. But a mere agreement between the parties to a contract that one of. them will not enforce* a breach of the contract by the other is not a modification of the. contract which discharges the surety. The learned counsel for the respondent treats this allegation as a modification of the charter party by extending the plaintiff’s time for completing the ship and the time when the charter should commence to November, 1903. But I do not so read the complaint. The only agreement by the plaintiff .was, .that it would not insist ' upon the charterer’s paying for the steamer until,it should be tendered to the oil company. Whether or not. there was a consideration for that agreement,, so that it would bind the "plaintiff, is not material. When the plaintiff sued for a subsequent breach of the contract, there had been no modification of the original charter party as to the terms or the obligations of either party under it. I think, therefore, that the contention of the respondent, that there was a modification of the charter, party alleged in the coih plaint which discharged the. surety, cannot be sustained. ■ '

The question then is whether'or not these three séparate defenses demurred to are sufficient. It is clear that the second is not. ' It is pleaded as a complete defense ; and certainly it is no defense to the action upon this bond to show that after, the oil company had been guilty Of a total breach of the charter party, the plaintiff then rechartered the steamer so as to reduce as much as possible the damages which the defendant would be called upon to pay.

The third separate" defense., however, I think is good, for there it is alleged that after the execution of the bond, by a binding, agreement between the oil company and the.plaintiff,'without the knowledge or' consent of the defendant, the original; charter party was altered in important respects; that, the time fixed by the charter party" within which the-said steamer should be converted into an oil tank, and within Which she should, enter the service of the charterer, was changed and enlarged, and that- in pursuance of said agreement the said steamer, was not finished and converted into an / oil tank on or before the 12th of March, 1903, and was. not tendered to the charterer until many. months thereafter. If there was any " alteration of the charter party, for the performance of which agreement the defendant had become surety, undoubtedly, within the rulé settled, in this State, the surety was discharged.

I think the. fourth separate defense is bad, as it is there alleged that the plaintiff did not use proper diligence to rechartpr the •steamer, and thereby released the defendant as surety from liability. ■ It might be a partial defense, if properly pleaded, but as, a total defense it is insufficient. .

’ I think, therefore, that the interlocutory judgment appealed from must be reversed, and the demurrer to the second and fourth separate defenses sustained, and the demurrer to the third separate defense overruled, without costs to either party in this court, with leave to the defendant to serve an answer amending the second and fourth separate defenses, without costs, and with leave to the plaintiff to withdraw the demurrer as to the third separate defense, without costs.

Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Judgment reversed and demurrer to second and fourth separate defenses sustained, and demurrer to third separate defense overruled, without costs to either party in this court, with leave to defendant to answer amending second and fourth defenses, without costs, and with leave to plaintiff to, withdraw demurrer to third defense, without costs.  