
    George L. Gabler, Respondent, v. George H. McChesney, Appellant.
    
      Demurrage—enforeible under a provision in bills of lading although not provided for in the contract of transportation—for what period, allowable.
    
    Action No. 1.
    The agent of the vendor of a quantity of lumber entered into a contract with a canal boat owner for the transportation of the lumber in two canal boats and its delivery alongside of the vendee’s dock in the city of Syracuse. This contract made .no provision concerning demurrage. The agent of the vendor also executed two other instruments in the nature of bills of lading, one for the lumber which was to be shipped on each boat. These instruments, duplicates of which were sent to the vendee, provided: “Consignee to be allowed three legal working days of twenty-four hours each to discharge this cargo, and for all other time, Sundays and legal holidays excepted, until such cargo is discharged, is to pay demurrage at the rate of five dollars per day.”
    The agent also sent another instrument to the vendee, which was, in all respects, similar to the bills of lading except that it embraced the lumber shipped upon both boats and provided that .the demurrage should be five dollars a day for both boats instead of five dollars a day for each.
    The boats arrived at the vendee’s dock in Syracuse late on the afternoon of November 30, 1897. The day following, the boatman notified the vendee of their arrival and at the same time delivered to him the bills of lading, and the vendee, after comparing them with the duplicates which he had theretofore received from the consignor, informed the boatman that he would unload the boats as soon as he could.
    Prior to the arrival of the boats at Syracuse, the Superintendent of Public Works had given public notice that the canal would officially close at twelve o’clock noon on the first day of December. The canal was accordingly closed on the first day of December, but the water in the Syracuse level was not drawn off until some time after the fourth day of that month. On the day last mentioned, and before any attempt had been made to unload the boats, they were, without the consent of either of the parties, removed from the vendee’s dock by the order of the Superintendent of Public Works to a point about two miles distant where they and the lumber thereon were permitted to remain until the opening of the canal the following spring.
    
      Held, that, notwithstanding the silence of the first-mentioned contract upon the subject of demurrage, the vendee, by accepting the lumber with knowledge of the contents of the bills of- lading, recognized them as binding contracts and could not be heard to say that he was not under any obligation to pay demur-rage as specified therein; _ "
    That it was incumbent upon the boatman to deliver his cargo alongside of the vendee's dock, and as the boats were removed from such dock on the fourth day of December, the vendee’s obligation to pay demurrage was suspended until the cargoes were again delivered alongside his dock the following spring.
    Action Yo. 2.
    May 9,1898, the boats reached the vendee’s dock, and were unloaded before noon on the fourteenth of that month. In the meantime, and upon the twelfth day of May, there was a break in the Brie canal and navigation was, in consequence thereof, suspended until the twenty-fourth day of May, upon which date the boats left the vendee’s dock.
    
      Held, that the boatman was entitled to demurrage at the rate of five dollars per day from May 9, 1898; to May 14, 1898—but not until May 24, 1898, the day when the break in the canal was repaired.
    Action Yo. 1.
    Appeal by the defendant, George H. McOhesney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 11th day of December, 1900, upon the decision of the court rendered after a trial at the Oneida Special Term pursuant to stipulation.
    ' The plaintiff is a canal boatman and the owner of two canal boats called the John Mahwr and the Craig & Crouch. The. defendant is a lumber dealer, doing business at the city of Syracuse-, Y. Y.
    In the summer of 1897 the defendant purchased a large quantity of yellow pine lumber from the Hilton-Dodge Lumber Company of Yew York, which by the terms of the purchase was to be delivered alongside of the defendant’s dock upon the Erie canal, in the city of Syracuse.
    On the twentieth day of Yovember of that year the Hilton-Dodge Lumber Company made a contract in writing with the Syracuse and Yew York Canal Line, by W. B. Walsh, assuming to act as its agent, to transport a portion of the lumber purchased by the defendant consisting of 105,000 feet at one dollar and sixty cents per 1,000 feet. This contract, which was executed in duplicate and which is designated in the record as “ Exhibit A,” recited that the lumber had been received on board the boats Graig <& Grouch and John Mahar, in apparent good order ; that it was to be carried by the Syracuse and New York Canal Line by its own or other means of transportation and forwarded to the defendant alongside of his dock at the rate of one dollar and sixty cents per 1,000 feet. One copy was delivered to the consignor and by it sent to the defendant at Syracuse, N. Y., without the knowledge of the plaintiff. On the same day Walsh, as agent, executed two other instruments in writing (Exhibits B and 0) which were in the nature of bills of lading, one of which was for the boat John Mahar, and provided for the transportation of 50,000 feet of pine lumber from the consignor’s dock in New York to the consignee’s dock in Syracuse, and the other was of like character, save that it related to the boat GraÁg <& Grouch and provided for the transportation of 55,000 feet of lumber. Each of these two instruments or bills of lading was executed in duplicate by the consignor, by Walsh, assuming to act as its agent, and by the plaintiff, one of them being delivered to the plaintiff and retained by him. The material portion of each of these instruments reads as follows :
    
      “ * * * Shipped, by Syracuse & New York Canal Line.
    “ * * * Captain G. L. Gabler, * * * the captain agreeing to tow day and night, and deliver same without unnecessary delay to the Consignee at the place of destination in like good order. * * * Consignee to be allowed three legal working days of twenty-four hours each to discharge this cargo, and for all other time, Sundays and legal holidays excepted, until such cargo is discharged, is to pay demurrage at the rate of five dollars per day. * * * ”
    On the same day Walsh, still assuming to act as agent, executed and sent to the defendant by mail, without the plaintiff’s knowledge, another instrument in writing (Exhibit D), which was in all respects similar to Exhibits B and C, except that it embraced the entire shipment of lumber by plaintiff’s boats, and provided that the demurrage should be at the rate of five dollars a day for both boats, instead of five dollars a day for each.
    The plaintiff’s boats left New York on the day these instruments bear date and arrived at the defendant’s dock in Syracuse late on the afternoon of November 30, 1897. The defendant was notified by the plaintiff of the arrival of his boats the day following (December first) at which time the defendant was engaged in unloading other boats containing portions of the lumber purchased in New York, and which had arrived at his dock in advance of the plaintiff’s boats.
    Prior to the arrival of the plaintiff’s boats at Syracuse due public notice had been given by the Superintendent of Public Works of the State of New York that the canals would be officially closed at twelve o’clock noon on the first day of December, and the same official had also issued a circular to owners of boats notifying them at what points along the canal they might tie up their boats during the time navigation was closed, but the defendant’s dock in Syracuse was not one of the points thus designated. In accordance with such notice the Erie canal was closed on the first day of December, but the water in the Syracuse level was not drawn off until some time after the fourth day of that month. On the day last mem tioned, and before any attempt had been made to unload the plaintiff’s boats, they were without the consent of either of the parties removed from the defendant’s dock by the order of the Superintendent of Public Works, to a point about two miles distant, where they and the lumber thereon were permitted to remain until the opening of the canal in 1898.
    The number of days intervening between the arrival of the plaintiff’s boats at the defendant’s dock and the 10th day of January, 1898, when this action was commenced, was forty, of which number six were. Sundays and two legal holidays, and the number of days for which demurrage was claimed was consequently twenty-nine.
    The facts as above stated were stipulated by the parties, and upon such facts it was found by the trial justice that the plaintiff was entitled to demurrage for twenty-nine days at the rate of ten dollars per day, amounting in the aggregate to two hundred and ninety dollars. . For this amount, together with interest and costs, judgment was subsequently entered, and from such judgment this appeal is brought.
    
      F. B. Gill, for the appellant.
    
      James B. Jenkins, for the respondent.
   Adams, P. J.:

The only questions discussed by counsel, and consequently the only ones to be reviewed upon this appeal, are, first, was there a contract binding the defendant to pay demurrage; and, second, did the action of the State authorities, in removing the plaintiff’s boats from the defendant’s dock, relieve the defendant from the obligation to pay demurrage after such removal, provided any contract to pay the same ever existed ?

It is- insisted by the appellant’s counsel that the contract under which the lumber in question was forwarded to the defendant was embraced in “ Exhibit A,” and that inasmuch as that contract is altogether silent upon the subject of demurrage, no* foundation is furnished for the plaintiff’s claim.

In submitting, this contention, however, it is conceded by the learned counsel for the appellant that if the instruments which were subsequently issued and which are designated in the record as Exhibits “B” and “0,” embraced the contract between the parties, the defendant is liable to pay demurrage at the rate of five dollars per day for each of the plaintiff’s boats, while, upon the other hand, it is claimed that if the instrument finally executed and designated as Exhibit “D” correctly sets, forth the contract he is liable to pay demurrage, but at the rate of only five dollars a day for both boats.

Precisely why these different instruments or bills of lading should have been made out and executed as they were is not satisfactorily explained. Nevertheless, it does appear that upon the morning after the arrival of his boats at Syracuse the plaintiff , personally notified the defendant of their arrival, and at the same timé delivered to him Exhibits “ B ” and “ 0,” which the defendant received, and after comparing them with the duplicates which he had theretofore received from the consignor, informed the plaintiff that he would unload the boats as soon as he could.

In these circumstances it is immaterial whether or not these particular exhibits were, strictly speaking, the actual bills of lading under which the lumber was transported. They purported to be such and they certainly were contracts of some nature which not only recited the terms of the affreightment, but also contained a stipulation for demurrage after the expiration of three days allowed for unloading, and by accepting the lumber, with knowledge of the contents of these instruments, the defendant within well-settled rules recognized them as binding contracts which defined the rights and liabilities of the several parties thereto, and he cannot now be heard to say they are not in force and effect what they purport to be- (Van Etten v. Newton, 134 N. Y. 143; Germania Fire Ins. Co. v. M. & C. R. R. Co., 72 id. 90 ; 9 Am. & Eng. Ency. of Law [2d ed.], 228.)

. Adopting this view, as we feel constrained to do, it follows that ■these were contracts by the terms of which the defendant was liable •to pay such demurrage as was therein specified, provided it is made to appear that the plaintiff performed his part of the contracts and that the defendant, in unloading the boats, consumed a longer time than that specified therein.

As-regards the second proposition, it is urged by the defendant that, inasmuch as it was the vis major of the State, without the consent of either the plaintiff or the defendant, which prevented the latter from unloading his lumber until the opening of navigation in the spring of 1898, the contracts - were suspended during the intervening time, and that the defendant was consequently excused for their non-performance. This contention is one which we should be inclined to favor, if the contracts in question contained no stipulation as to demurrage (Scholl v. Albany, etc., Iron & Steel Co., 101 N. Y. 602); but the rule has long obtained that where, as in this case, there is an express provision for demurrage, parties must be held strictly to the terms of their contract; and that in general no excuse is available for any delay, from whatsoever cause arising,, which is not stipulated in the contract. (Cross v. Beard, 26 N. Y. 85.) However, in the view which we take of the case it is not necessary to discuss this feature of it or to definitely pass upon the correctness of the defendant’s contention, for even if wholly untenable, we are yet of the opinion that for another reason the contracts were suspended, and that in consequence thereof the plaintiff is not entitled to. recover.

A contract of demurrage is a legal contract and one which must be construed and determined upon strict legal principles. This being so, it becomes important to examine a little more carefully into the terms of the contract upon which the plaintiff rests his claim. By reference thereto it will be seen that the lumber transported by the plaintiff’s boats was to be delivered to the defendant “ alongside ” of his dock at the city of Syracuse. And this, as found by the trial court, was one of the requirements of the contract. Undoubtedly the plaintiff himself so understood it for he does not claim to have been in readiness for unloading until his boats were at the defendant’s dock. This dock, therefore, was the place where the contract was to be finally consummated; it was where the lumber was to be unloaded, and where the plaintiff’s right to demurrage was to accrue, if at all. The defendant could not, under the contracts, have required the plaintiff to unload his boats at some distant dock, nor could the plaintiff have compelled the defendant to accept his lumber at any other place than that specified in the contracts. When, therefore, the plaintiff’s boats were removed from the defendant’s dock, in consequence of which the latter was required to accept his lumber at a point about two miles distant therefrom, we think he had the right to treat the contracts as suspended and to regard his obligation to pay demurrage thereunder as terminated; for it is a principle of law too well settled to admit of discussion that, in the construction of contracts, where it appears that the obligation of performance by one party is to be preceded by the doing of some particular act or the performance of some particular duty by the other, the neglect, refusal or omission to do such act or perform such duty dispenses with the obligation of performance by the former. (Mansfield v. N. Y. C. & H. R. R. R. Co., 102 N. Y. 205.)

Within this principle, it was incumbent upon the plaintiff to deliver his cargoes at the place specified in the contracts, and as he did not do so or offer to do this at any time after the expiration of the three days’ limit, we fail to see upon what theory he can maintain this action. (9 Am. & Eng. Ency. of Law [2d ed.], 248.)

It follows, therefore, that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide event.

All concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Action No. 2.

The head note for this opinion appears on page 583, ante.

Appeal by the defendant, George H. McChesney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 11th day of December, 1900, upon the decision of the court rendered after a trial at the Oneida Special Term pursuant to stipulation.

F. B. Gill, for the appellant.

James B. Jenkims, for the respondent.

Adams, P. J.:

This action arose out of the same transactions referred to in a former action between the same parties (Action No. 1) and the stipulated facts are substantially the same, with this exception : The ■ plaintiff’s boats remained at the point where they were taken by the Superintendent of Public Works until the opening of navigation in the spring of 1898, when they were returned to the defendant’s dock. They reached the dock on the ninth day of May, and were unloaded before noon on the fourteenth of that month. In the meantime, and upon the twelfth day of May, there was a break in the Erie canah and navigation was, in consequence thereof, suspended until the twenty-fourth day of May, upon which date the boats left the defendant’s dock. The present action was commenced on the 20th day of June, 1898, and judgment was demanded for demurrage amounting to the sum of $800. The trial court refused to allow any portion of this demand for demurrage accruing prior to the ninth day of May, when the boats were returned to the defendant’s dock, and to such refusal no exception is taken by the plaintiff. But demurrage was allowed at the rate of five dollars per day for each boat from the ninth until the twenty-fourth day of May, the day the break in the canal was repaired.

As already stated, the unloading of the boats was completed on the fourteenth day of May, at which time the defendant’s liability for demurrage under the contracts terminated; and whatever detention occurred subsequent to that date was the result of a cause for which the defendant was in. no wise responsible. Had there been sufficient water in the Syracuse level to have floated the plaintiff’s boats on the fifteenth day of Hay, it is reasonable to assume that he would have taken advantage of it, and had he done so of course it would not be claimed that he would have been entitled to demurrage for that or any subsequent day. Upon what principle, therefore, it can be successfully contended that, because there was not sufficient water to float the plaintiff’s boats, the defendant is liable under his contracts, we confess ourselves unable to discover.

It appeared in the other action that the defendant had availed himself of the three-day privilege under his contracts prior to the 9th day of Hay, 1898, and consequently he was doubtless liable to pay demurrage for every day occupied in unloading the boats after they were returned to his dock. As we have seen, five days were consumed by the defendant in the process of unloading, and for that period of time, but for no longer, we think the plaintiff is entitled to recover at the contract fate; and unless he is willing to accept that sum there must be a new trial of the action.

Judgment reversed and new trial ordered, with costs to the appellant to abide event, unless the plaintiff consents to modify the judgment appealed from by reducing the amount of his recovery to fifty dollars, with interest thereon from the 20th day of June, 1898, in which event the judgment, as thus modified, is affirmed, without costs of this appeal to either party.

All concurred.

Judgment reversed and new trial ordered, with costs to'appellant to abide event, unless the plaintiff stipulates to modify the judgment appealed from by reducing the amount of his recovery to fifty dollars, with interest thereon from the 20th day of June, 1898,'in which event the judgment, as thus modified, is affirmed, without costs of this appeal to. either party.  