
    Ulster Brick Company, Respondent, v. Murtha & Schmohl Company, Appellant.
    Second Department,
    July 30, 1915.
    Ships and shipping — demurrage for detention of barge — obligation of vendee to unload vessel without unnecessary delay — measure of damages — evidence.
    One who purchases a cargo of brick loaded upon a barge impliedly undertakes to unload the same without unnecessary delay and pay any additional towage and wharfage costs caused by ordering the discharging berth to be shifted. The vendor is entitled to hold the vendee for any loss occasioned by his delay in taking delivery of the goods.
    Where the vendee did not discharge the cargo from the barge for nearly four months, although there were over six weeks during which the weather was favorable for so doing, he is liable for demurrage charges.
    Prom the time a vessel may be considered as on demurrage, the obligation to pay is continuous, regardless of weather or holidays, until the discharge is completed.
    In an action to recover demurrage it is not error for the court to refuse to charge that it was incumbent upon the vendor to protect the cargo from the weather while it was on the barge.
    
      Proof of the detention of such barge with the market value of the use thereof, makes out the plaintiff's right of action, arid a receipted bill paid by the vendee is admissible as evidence on the question of damages, although the payment was made after action brought. This, because, while a cause of action must arise before beginning suit, the evidence to sustain need not then be complete.
    Appeal by the defendant, Murtha & Schmohl Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 23d day of December, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of December, 1914, denying defendant’s motion for a new trial made upon the minutes.
    The judgment was rendered for fifty-nine days’ detention and the towage charges for a certain brick barge.
    
      Frank Barker, for the appellant.
    
      Graham Witschief, for the respondent.
   Putnam, J.:

Although this brick cargo was purchased without any bill of lading or assignment of the contract of carriage, by the-act of purchase defendant undertook to unload without unreasonable delay, as well as to pay for any additional towage and wharf-age caused by ordering the discharging berth to be shifted. (Houge v. Woodruff, 19 Fed. Rep. 136.) As vendor of the cargo plaintiff' was entitled to hold the vendee for any loss occasioned by his delay in taking delivery of the goods. (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 132, as added by Laws of 1911, chap. 571.) Having a temporary possession of the brick barge, plaintiff could recover any damages for detaining the barge beyond a reasonable period for her discharge, since presumably it could otherwise employ the barge, or, if it chose, turn the barge back to its owner.

On November 17, 1913, defendant purchased this cargo. Up to January 1, 1914, weather conditions were favorable for discharging. ' But it was not till March twelfth that the cargo was out. The question of the brick’s quality, including its alleged rejection and defendant’s repurchase of it in January, were left to the jury, with the controverted testimony as to the daily rate to unload such a cargo, as well as the effect of a trade custom for other dealers in brick to take and pay for portions of such cargoes, by delivery from the barge’s rail.

Defendant urges that the court should have charged defendant’s request that “it was incumbent upon the plaintiff to protect the brick from the weather while it was on the barge.” After remarking that there was no evidence on the subject, the learned court said: “ I suppose it was the plaintiff’s business to exercise reasonable care for the protection of the brick until it was actually taken in charge of by the defendant. * * * I will leave it to the jury to say in this case, from all the facts and circumstances, who, if either of these parties, was responsible for any damage done to the brick while on the barge.” The answer had pleaded that after this alleged repurchase, that is, while the barge was at One Hundred and Thirty-third street, Manhattanville, there was severe cold and freezing weather, when the brick, being uncovered, froze to the deck. This was set up to excuse delay in taking the brick at that time, and-not as a counterclaim. But if defendant had not attempted to rescind the contract of purchase, and the discharge had gone on with ordinary dispatch, the cargo should have been all unladen before January first. After that the vessel could be considered as on demurrage; and once a vessel is on demur-rage the obligation to pay is continuous, regardless of weather or holidays thereafter, until the discharge is completed. (Baldwin v. Sullivan Timber Co., 142 N. Y. 279, 285.) Hence the request to charge in the abstract as to the duty to protect the cargo was not applicable. The instruction as given was as favorable to defendant as its pleadings and proofs warranted.

The plaintiff proved payment of the hire of the barge at five dollars a day and thirty-eight dollars for extra towage in shifting the barge to three different unloading berths. The sum, mons and complaint were served on March thirty-first, but this payment appears to have been receipted for on April fourth, five days after suit brought. The action, however, was not premature. Proof of detention, with a market value for use of such a craft, made out plaintiff’s right of action. This receipted bill was evidence to protect defendant against a possible double liability to the barge owner. While the' cause of action must arise before beginning suit, the evidence to sustain it need not then be complete. (Gillies v. Improvement Co., 147 N. Y. 420.) We cannot say that the weight of evidence is against the verdict or that the damages found were excessive. The judgment and order are, therefore, affirmed, with costs.

Jenks, P. J., Thomas, Carr and Stapleton, JJ., concurred.

Judgment and order affirmed, with costs.  