
    Charles T. Russell et al., Resp’ts, v. Samuel W. Allerton, App’lt.
    
      (Supreme Court, General Term,, First Department,
    
    
      Filed May 9, 1890.)
    
    ■Charter party.—Charge.
    The plaintiffs agreed to ship cattle for defendants, the vessel to be ready by April 1. Plaintiffs were, also to have the right to ship grain in the lowest decks. An agreement was made to extend the time for the cattle until April 7; the grain, which must have been shipped first, not being ready. There was evidence that thereafter the time to ship was extended to April 9, and finally to April 11, a charter to ship grain between April ■5 and 10 having been entered into. The evidence about all the extensions was very conflicting, and there was evidence that the ship was not ready ■on the 11th. The court, at defendants’ request, charged: “If the jury find that on the morning of the 7th the defendant said he would ship if it could be ready at midnight on the 9th, and in fact the ship could not have been ready on the 9th at midnight, he had a right on the 7th to refuse the ship at any time on the day.” But the court refused defendants’ request to charge that “if the jury find that the plaintiffs were not and could not be ready to receive the cattle at the time finally agreed on, the verdict should be for the defendants.” And the court said : “I cannot charge that, because it may have been on the 9th.” Held, that defendant was entitled to the latter request, which was not included in the former request, and was broad, and included the 11th.
    Re-argument of appeals from a judgment entered upon a verdict, and an order denying a new trial. For opinion on former argument, see 29 FT. Y. State Rep., 169.
    
      Ira I). Warren, for app’lt; James L. Bishop, for resp’ts.
   Daniels, J.

A reconsideration of these appeals was directed, for the reason that the third request to charge had been overlooked in the decision which had previously been made. And the case has been further examined, to ascertain whether the omission to notice that request .will justify any change in the direction which has already been made for the disposition of the appeals. By the charter which was made between the plaintiffs and the defendant for the shipment of the cattle on board the Bertha, she was to be ready to receive them at the port of Philadelphia, not later than the first of April, 1879. She was not at that time ready to receive the cattle. And evidence was given to prove that she was not ready to receive the cattle on board on the 7th of April, during which day the defendant finally refused to lade them on board the steamer. And it was to avoid the effect of this condition of the steamer that evidence was given on behalf the plaintiffs by Mr. Mather, who was their agent, to prove that the time for the lading of cattle on board the steamer was extended by an agreement made between himself and the defendant. And it is necessary to consider the effect of the testimony of this witness, for the purpose of determining whether the refusal to charge the later request was obviated by the charge given as to a simliar proposition when that was first presented to the court.

He testified that early in the day of the 7th of April an interview took place concerning the loading of the cattle upon the steamer; and that it was agreed, as the result, that if the steamer should be ready to receive the cattle on the night of Wednesday, which was the 9th of April, that -they would be shipped by the defendant. But this, according to the evidence of the witness, was not the only day to which an extension of the time for shipment was contemplated and arranged. For, he further testified, that a shipment on the 11th of April was also within a conversation which took place either on the 7th of April, or on the Friday .or Saturday previous to that date.

He was examined quite at large as to this latter extension for the time of shipment of the cattle. And the inquiry was made of him whether it was “on the 7th of April that they said they would ship if the vessel was ready on the 11th at midnight ? ” And his answer was, “ To the best of my remembrance it is; it might have been the Friday or Saturday previous, but I can’t say positively.” Upon his previous re-direct examination he was asked, “ When you had the conversation with Mr. Allerton or Mr. Sherman on the 7th of April, in which they said they would ship the cattle provided the vessel was ready by the 11th of April at midnight, had you at that time stated to them the substance of the charter-party marked defendant’s exhibit No. 4 and plaintiffs’ exhibit No. 24?” And he answered, “To the best of my knowledge and belief I had; I won’t say I did.” And further: “ How did it happen on the 7th of April that anything should have been said about the vessel being ready on the Ilth at midnight ? A. It would be likely to occur from the condition of this charter.

“ Q. Wasn’t that fact alluded to as a reason of the loading of the vessel on the 11th ? A. To the best of my knowledge it was.”

He was also asked upon his re-cross examination whether, “ On the 7th of April, when you talked that matter over with them, wasn’t there some doubts as to whether the ship would be ready-on the 11th to receive the cattle ? A. I don’t remember; there might have been.

“ Q. You were talking about that. Did you show them the charter-party ? A. I presume so; I don’t say I showed them that charter-party; I am only telling you the general conversation in which I have reason to believe that all the facts were brought open to them.

“ Q. When they left your office did they go to inquire about whether it could be ready on the 11th? A. That is my belief.”

The evidence did, therefore, authorize the position to be taken on behalf of the plaintiffs, that the time for the shipment of the cattle had been finally extended to the night of the 11th of April. And that this arose out of the condition of a charter which had been made with Peter Wright & Sons for the lading of grain in the lower part of the steamer. This charter was made on the 4th of April, after a previous charter for the carriage of grain had been cancelled on the ground that the grain included in that-charter was to be taken to Avon Mouth dock, where the cattle could not be unladen, as the defendant was entitled to have that done under the charter made with him.

This witness testified further that the grain was to be loaded within five days after the 5th; from the 5th to the 10th. And also answered that the charter for the grain extended the time for lading it on the steamer until the 10th of April. And as the cattle could not all be placed upon the steamer before the lading of the grain was completed, there was an obvious propriety, if that could be done, for extending the time for the lading of the cattle to the 11th of that month. And that would be the final period which, under the evidence of this witness, the plaintiffs might be at liberty to insist upon their right to a performance of the contract on the part of the defendant. The testimony of this witness is further to the effect that the defendant and the person acting for him, or one of them, proposed to ascertain by inquiry how long it would take to get the grain on board so as to be ready for the cattle, and that if it would be done by Wednesday, which was the 9th, that the cattle would be shipped. And his answer was: “ I think that is the substance of what they told me.”

The question was then put to him: “ On the 7th of April, when you talked that over with them, wasn’t there some doubts as to whether the ship would be ready on the 11th to receive the cattle? A. I don’t remember; there might have been.”

The further question was afterwards asked: “ When they left your office, didn’t they go to inquire about whether it could be ready on the 11th? A. That is the best of my belief.”

The defendant, upon the same subject, testified that he did go to the office of Peter Wright and asked them if they thought the grain would be ready. And the person to whom the inquiry was addressed said he didn’t think it would be ready before the 15th. They were uncertain when it would be ready. They said it was on the cars and could not tell when it would arrive. The plaintiffs’ witness, Mr. Mather, was also asked: “Didn’t Mr. Sherman or Mr. Allerton, when you met them on the street, say that they ascertained that the rest of the cargo could not be gotten on the ship by the 11th, and they would not ship? A. He might have told me so, but I don’t remember.”

He was also asked whether on the 7th of April he knew of anything to prevent the entire completion of the loading of the grain by the 11th.” He answered, “I did not” This evidence very clearly discloses the understanding at the trial to have been "that it tended to prove the fact that the defendant consented to an extension of the time to the 9th of April, and also to the 11th of the same month, in case the steamer would at either date be ready to receive the cattle. And it also tended to prove the further fact that the steamer would not be in readiness for that object by the night of the 11th. And after making the inquiries which seem to have been made at the office of Peter Wright & Sons, and the witness met the defendant and Mr. Sherman, who was acting with him, after they had been to the office of Wright & Sons, he was asked the question: “ When he and Mr. Sherman met you on the street on the 7th of April in the afternoon, didn’t they tell you they had ascertained the fact that you would keep the vessel four or five days longer, and didn’t they refuse to ship on the ground that the cattle wouldn’t be fit to ship? A. I think they did.” And the fact was further proved that the steamer was not ready to receive the cattle, either on the night of the 9th or the day of the 11th of April, although evidence was given tending to prove that she might have been ready within two days after the 7th, which was the shortest possible time to put the grain on board. And it was as to this state of the evidence and the inquiries which the jury could make under it, that the requests were made for the directions now under consideration. The court had charged the jury that if the ship was not ready on the 7th of April, and there was no extension of the time, that then the defendant was entitled to a verdict. But if at that time the defendant had agreed to put the cattle on board if the ship was ready at midnight of the 9th, then tbe plaintiffs were entitled to maintain the action. The case was therefore left in a condition in which further directions as to the effect and time of the extension were important for the guidance of the jury. And the court was accordingly requested to charge: “ Third. If the jury find that on the morning of the 7tli of April the defendant said he would ship if the vessel could be ready Wednesday, at midnight, and in fact the ship could not have been ready on Wednesday at midnight, he had a right on the 7th to refuse the ship any time in the day.

“ The court: I so charge.”

And this is the request which has not already been considered in the disposition of the case. The court complied with the request made in this manner, but it will be seen from its language that it applied exclusively and wholly to the agreement to ship if the vessel could be ready on Wednesday at 'midnight. And if she could not, that then he had a right on the 7th to refuse to make the shipment The other request, which has already been considered, was broader than the charge in this manner given to the jury.

“ Eighteenth. It was in this language: ‘ If the jury find that the plaintiffs were not and could not be ready to receive the cattle at the time finally agreed on, the verdict should be for the defendant.’

“The court: No, I cannot charge that, because it may have been on the 9 th.”

For it included not only the evidence tending to establish an extension of the time of shipment to Wednesday at midnight, but also the time finally agreed upon. And if the witness Mather was right in his evidence that there was an extension .also of the time of shipment to the 11th of April that was likewise included within the language of this request, for that would be the time finally agreed upon. And if the plaintiffs were not and could not be ready to receive the cattle at that time, then the defendant was entitled to have the jury directed to find a verdict in his favor. These two requests essentially differ in this respect, the one extending the time no farther than midnight of the 9th of April, and the other to the time finally agreed upon, which might be under the evidence the 11th of April. And the defendant was entitled in this state of the evidence to have this direction given to the jury. That they were understood at the trial to be different in their effect, as they certainly are in their language, is evident from the circumstance that the court charged the first proposition, but distinctly refused to charge the other. And from that refusal the jury could very well understand that it was not necessary that the steamer should be ready to receive the cattle on the 11th, if she was not on the 9th, if the 11th was the time finally agreed on, to entitle the plaintiffs to maintain the action. And that the court considered the propositions to be different, is evinced by what was said in answer to the last request. And that was that it could not be charged because the time finally agreed upon might have been the 9th.

But that did not justify the learned judge presiding at the trial to refuse to give this direction, for with equal probability the jury might have concluded that the time finally agreed upon was not the 9th, but that it was the 11th. The disposition which was accordingly made of the third request to charge in no respect legally answers the exception which was taken to the refusal to charge this eighteenth request.

Neither can the position be approved that the question put to the witness Mather as to whether he had reason to believe that the offer to ship cattle on board the Bertha on the 7th of April by Wright & Son was made on behalf of the defendant. The question itself was allowed to be answered in such a form as to receive statements which had been made, consisting only of what the law denominated hearsay, and therefore improper. This related to a material part of the case concerning the subject of damages. For this witness had previously stated that if he had gone into the market immediately after the defendant’s refusal to ship the cattle, on the afternoon of the 7th of April, and had taken what was immediately offered, he could have closed at the same rates. He was then asked wheher they did not refuse one of a higher rate than was accepted. And his answer was, “ Possibly we did.” The question was then put to him: “Didn’t you refuse one for Peter Wright & Son on the afternoon of April 7th for four pounds a head ? A. I can’t remember what the rate was. We refused offers from them at that time because we ■didn’t think we were warranted in accepting the rates.” And it ivas to avoid the effect of this testimony, which included a larger rate of compensation than was finally received by the steamer for cattle laden on board and carried by it, that the inquiry was made as to the belief of the witness relative to the origin of the offer. That belief was not admissible. It could not regularly be received as evidence to affect the defendant’s liability in the action. Both the question itself and the answer obtained were equally erroneous.

Upon neither ground can any change be justly made in the direction already given for the disposition of these appeals. But the judgment and order should be reversed, and a new trial directed, with costs to the defendant, to abide the event

Yak Brunt, P. J., and Brady, J., concur.  