
    No. 2395.
    The Southern Dry Dock Company v. Steamship Wm. Tabor and Owners.
    Tlie ’burden falls on tlie defendant who sets up a claim in reconvention in damages caused "by the plaintiff, who has failed to fulfill his contract within the time specified, of showing that he caused him, the plaintiff, to he put in default.
    APPEAL from the Seventh District Court, parish of Orleans.
    
      Col-lens, J. JB. JSgan, for plaintiff and appellee.
    
      J. Ad. Rosier and Randolph, Singleton & Rroione, for defendants and appellants.
   Taliaferro, J.

This suit is brought by the plaintiff for charges against the steamship William Tabor, incurred for docking the vessel and for labor and materials furnished in making repairs upon her.

The defendants plead the general denial, and allege that on or about tlio fifteenth of March, 1866, they entered into an agreement with plaintiff to take said vessel into their dry dock in order to dock and repair her; that plaintiffs did commence the repairs on the fifteenth of March, but in consequence of the insufficiency of the dock and want of skill in those having the management of it, the defendants were compelled to wait eighty-one days for the repairs the plaintiffs had agreed to make, the dock having given way and caused delay in. repairing it. The defendants on this ground set up a claim for $12,150< in reconvention as damages sustained by them from being deprived of tbo use of tbeir vessel.

The plaintiff had judgment for $5017 46, with interest, and the defendants appealed.

We think the defendants have failed to establish the making of such a contract as they allege in their answer. They do not seem to have-set up objections to the correctness of the hill furnished, and it appears to he established by the evidence. The testimony of the plaintiff is. to the effect that the captain of the ship applied to have her docked, and asked for nothing more; that the docking of a vessel is considered a contract of itself, the purpose of docking being in part to ascertain the nature and extent of the work necessary to be done, and until this is ascertained, no contract can properly he entered into regarding repairs. In some instances it happens that no repairs are made.. Prom the nature of the business the contract lor repairs is a separate contract from that of docking. The delay complained of seems to-have been submitted to without objection. There does not appear to-have been a contract by which the plaintiffs were hound to perform any given quantity of work within any specified time, and there seems-to have been no putting them in default by a demand on the part of the defendants to finish the work.

The case was referred, unnecessarily, we think, to experts, and the amount of testimony taken without any satisfactory result makes up a very large and confused record. Tlie report of tlie experts we tliink irrelevant. They disagreed in their estimates, and the umpire awarded the plaintiffs about $3000. An exception was filed to the introduction of the reports of the several exports on numerous grounds, which it is unnecessary to examine. 1 An. 332.

We think the judgment of the lower court does justice between the parties, and it is therefore ordered, adjudged and decreed that the same be affirmed with costs

Rehearing refused.  