
    Pregenzer v. Burleigh.
    (New York Common Pleas—Additional General Term,
    December, 1893.)
    Defendants made an unconditional contract to load plaintiff’s boat immediately without delay on its arrival at Plattsburgh or Port Henry. Held, that defendants were liable to all damages sustained by plaintiff for failure to perform their agreement.
    Plaintiff was delayed thirty days, and the trial justice found that three dollars a day was a fair price for the use of a boat during that time; but it appeared that on the cargo, which was furnished at last, the profits were about twenty dollars more than would have been made on the one promised, and the time required was substantially the same in either case. Plaintiff had judgment for ninety dollars. Held, erroneous; there should have been a deduction made for the excess of profit.
    Appeal by the defendants from a judgment of the District Court in the city of New York for the first judicial district, rendered upon a trial before the justice thereof without a jury.
    The nature of the action and the facts are stated in the opinion.
    
      Hyland & Zabriske, for defendants (appellants).
    
      T. Clement Campbell, for plaintiff (respondent).
   Giegerich, J.

This action was brought to recover damages in the nature of demurrage for the defendants’ delay in loading the plaintiff’s canal boat. The terms of the agreement are disputed. The plaintiff testified that the defendants’ agent in New York agreed to “load him” for the return trip “ immediately, without delay,” on his arrival either at Plattsburgh or Port Henry. The agent denied that anything was •said as to time, and claims that the agreement was not to “load him,” but to “give him a load.” The justice decided the issue in favor of the plaintiff, and while a different conclusion might have been reached, there was sufficient evidence to support the view taken by the court helow. Therefore, for the purposes of this appeal, it will be considered that the defendants’ contract (entered into in New York during the latter part of May and before the upward trip was begun) was to load plaintiff’s boat immediately upon its arrival at Plattsburgh or Port Henry.

When the plaintiff reached Whitehall with his boat on June fifth, the defendants’ agent gave him an order upon third persons at Port Henry for a load of iron ore, but this order was not honored when presented. Pie then communicated the fact by letter to the defendants at Whitehall, and on June .tenth received a second order on a different firm of shippers at Plattsburgh, to which place he made his way as soon as a steam vessel could be procured to tow his boat. Finally, on July eighth, he was given a load upon this order, but the cargo was of a different material and to a different destination from « that promised. On these orders were printed the words “ no claims for demurrage allowed; ” but this stipulation is ineffectual, as it constituted no part of the original agreement ;■ nor, under the circumstances, can it be regarded as a modification of the same.

The defendants’ position, that they were not responsible for the delays, is untenable. Having agreed to load the plaintiff’s boat immediately, they are liable for all damages arising from the neglect, omission or failure of other persons upon whom they depended for such performance and whom they constituted their agent, as it were, fro hac vice. Van Etten v. Newton, 15 Daly, 538; 6 N. Y. Supp. 531; 134 N. Y. 144 Wordin v. Bemis, 85 Am. Dec. 255.

The defendants’ counsel argue strenuously that mere detention of vessels, without proof of some fault on defendants’ part, does not entitle the plaintiff to recover, and cites many cases in support of his position. They are all, however, eases in which there was no express contract, and consequently are not relevant as authorities, as here there was a special contract, viz., to load plaintiff’s boat immediately. Contracts in which lay days are specified are analogous to the one in hand, and in such cases liability attaches when the time fixed has expired, whether the defendants have caused the delay or not. Abbott Shipping, 307, et seq., and cases cited; Cross v. Beard, 26 N. Y. 85.

At any rate, in the present instance the defendants made an unconditional contract to do a certain thing at a certain time, and must answer in damages fbr the failure to perform their agreement. Stewart v. Stone, 127 N. Y. 500, 507, and cases cited.

Besides, no evidence was given of any excuse for nonperformance. Neither does it appear that the plaintiff was remiss in any way; on the contrary, he presented the orders with diligence and gave prompt notice of the dishonor of the first one.

The judgment must be impeached, however, because the damages awarded are too great in any aspect of the evidence. At most there was a delay of only thirty-one days, viz., from r June eighth, the time of presenting the first order, to July eighth, when the load was received. One of these days must be allowed for loading. Therefore, the defendants are chargeable with thirty days only. Now the plaintiff himself testified that three dollars per day was a fair price for the use of a boat during the period for which he was detained. Other witnesses for the defendants testified to a lower figure. But there is additional evidence that three dollars per day would have been about the daily profits of the plaintiff had the cargo been furnished as agreed. The justice was warranted then in the conclusion he evidently reached, that three dollars was a fair measure of damage for each day of detention, and the rule of damages followed was, to this point, the correct one. Ashburner v. Balchen, 7 N. Y. 262. This, without more, would justify the judgment rendered, which was for ninety dollars. Now, this sum can be arrived at only by taking all the testimony most strongly in favor of the plaintiff. But it is shown further, on plaintiff’s admission and on other evidence, that the net profits realized on the cargo which was furnished at last were about twenty dollars more than what would have been made on the one promised, and the time required was substantially the same in either case. No deduction was made for this excess, and in this, we think, error was committed. Otherwise the plaintiff would be placed in better financial condition than he would have been had no delay occurred. This is contrary to the theory of damages.

The sole object is to furnish compensation. In ordinary cases of contract the remuneration must be less; in eases of tort it may be more.” Sedg. Dam. 37. We think that the excess of profits should be treated as though it were money earned independently during the period of delay, and, consequently, on a familiar principle of law, should be subtracted. Shannon v. Comstock, 21 Wend. 457; Heim v. Wolf, 1 E. D. Smith, 70.

The damages awarded should, therefore, be reduced to seventy dollars, and the judgment, as thus modified, should be affirmed, but without costs to either party.

Bischoff, J., concurs.

Judgment affirmed, without costs.  