
    Michael Hassett, Respondent, v. Patrick McArdle, Impleaded, Appellant.
    (New York Common Pleas—General Term,
    April, 1894.)
    Plaintiff signed and delivered to defendants a paper agreeing to take on his boat 200 tons of iron from New York city to Troy at a specified rate, defendants to load and unload the boat, the loading to be done in three days and the unloading in four days after the boat was in dock, and the defendants to pay for 200 tons though they only loaded 150 tons, and at the rate specified for any excess over 200 tons. After the paper was delivered defendants told plaintiff to get his boat to the dock as quickly as possible and that they would load her as soon as possible. Held,%hat this constituted a positive agreement to ship a load by the boat, and as 200 tons was the smallest load plaintiff offered to carry, it was fairly to be inferred that that was the load intended.
    Plaintiff kept his boat at the dock for two days waiting for the cargo, when he was compelled by the wharfmaster to pull out to enable other boats to load. He thereafter reported every day for several days at the office of the defendants, who finally refused to give him a load. Held, that it would be assumed that the parties contracted with the under- . standing that the contract was to be subject to all the regulations and orders of the public officers having charge of the docks, and that plaintiff did all that could be reasonably required of him, and was not chargeable with a failure to perform on his part.
    
      Appeal from a judgment of the General Term of the City Court, affirming a judgment of the trial term entered upon a verdict in favor of the plaintiff for eighty-six dollars and ten cents.
    The action was to recover damages for breach of contract on defendants’ part in failing to deliver a cargo of iron to be carried on plaintiff’s boat from New York to Troy, in November, 1890. The contract and its performance by plaintiff were denied.
    The following paper was drawn up in defendants’ office in New York city on the day of its date, November 27, 1890, in duplicate, and signed by plaintiff, one copy being retained by defendants and the other delivered by them to plaintiff:
    “ Mess. M. Donnelly & Co., New York City :
    “ Gentlemen ■—• I hereby agree to take on boat Katie and Nellie, two hundred tons iron from New York city to Troy, N. Y., at the rate of 50 cents per gross ton, Mess. M. Donnelly & Co. to load and unload the boat. Said iron to be delivered to the Troy Steel & Iron Co., at Troy, N. Y. Mess. M. Donnelly & Co. to load the boat here three days after the boat is in the dock, and four days to unload her after she is in the dock at Troy, N. Y. Mess. M. Donnelly & Co. to pay for 200 tons at 50 cents a ton should they only load 150 tons, and should there be over 200 tons the rate is to be 50 cents per gross ton.
    “M. Hassett.”
    After the papers were signed the defendants told the plaintiff to get his boat as quickly as possible to the dock, and that they would load her as soon as possible. The evidence as to what was done thereafter is discussed in the opinion.
    
      David McClure, for appellant.
    
      Hyland <& Zahriskie, for respondent.
   Daly, Ch. J.

The defendant is right in his contention that the writing signed by the plaintiff being perfectly clear and unambiguous, its construction was for the court and not for the jury; also, that it did not., constitute an agreement, but was a mere proposition or offer, not obligatory upon the defendants until they accepted it and agreed to deliver a specified quantity of iron to plaintiff for shipment. Barrow S. S. Co. v. Mexican R. R. Co., 134 N. Y. 15; Chicago, etc., R. R. Co. v. Dane, 43 id. 241.

The evidence clearly establishes such an acceptance and ■agreement on the part of defendants. The testimony of the plaintiff, which, however contradicted by the witnesses for the defense, we must assume that the jury believed, was that after the papers were signed (and immediately after is a fair inference from the testimony) defendants told him to get his boat to the dock as quick as possible,” and they would load her as soon as possible. The only question that can possibly arise upon the positive order thus given is as to the quantity of iron which the defendants were to deliver or load. The plaintiff claims only the lowest quantity under the contract, and we think that the defendants’ obligation went to that extent at least. The written proposition was to carry 200 tons at fifty cents per ton, and it was provided that if less were shipped 200 should be paid for. When the offer was accepted and the defendants promised to send a load, it is fairly to be inferred that that was the load intended by them, for although they had the option to ship more, they did not engage to do so. There was a positive engagement to ship a load by the boat, and as the smallest load the plaintiff offered to carry was 200f. tons for $100 (and that being the minimum freight for any less-quantity) the conclusion is inevitable that defendants intended, by their order, that plaintiff should understand that lie was to receive at least that load.

It is, however, contended by defendant that, conceding a valid contract on their part to ship a cargo of a certain quantity, plaintiff failed to keep the agreement on his part, in not having his boat at the dock ready to receive the cargo. Defendants had three days in which to load the boat after she was in dock, and the argument is that the boat was to be moored at the dock and there remain for at least three days, awaiting tlie cargo. This was not done, because the dock-master would not permit plaintiff’s boat to lie idle at the Avharf while other vessels needed the room; and so, after the plaintiff had secured a berth at the foot of Leroy street, with which defendants were satisfied, and had lain there part of two days waiting for a cargo which defendants had promised to send, the wliarfmaster told him that if he did not get the iron on immediately he could not hold the berth. Plaintiff reported this to the defendants, who said they would come right down and load her. They did not come, and the dock-master made him pull out for a brick barge. He reported this to the defendants and told them that he would have the berth again in half a day; that „ the wharfage master had shoved him out, but had promised to give him a berth as soon as they were ready to load him. Although Mr. McArdle, junior, felt bad ” for plaintiff’s losing the berth, and said he had no business to give it up, that he (McArdle) was paying for it, the defendants did not countermand their order, but suffered the plaintiff to come to their office day after day, waiting nearly all day, putting him off with excuses, while his boat remained at the foot of Leroy street; and finally, when he said he was not going to stay there any longer, and was going to see his lawyer if they did not give him a load, they at length told him that they would not give him any load.

The plaintiff did all that he could reasonably be expected to do under his contract, which, it must be assumed, was made with the full understanding between the parties that it was to be subject to all regulations and orders of the public officers having charge of the docks; and it does not appear that the defendants would have been unreasonably delayed in the shipment of any cargo which they were at any time ready to send. The loss of the berth' at Leroy street was due to defendants’ own delay in failing to send the load as they promised.

As the questions of the construction of the plaintiff’s writing, and the acts of the defendants alleged to constitute a contract, and the performance by plaintiff of his obligations thereunder, are the only ones discussed by appellant on liis brief, no others are considered. The trial court charged upon the law of the case in all respects as the defendant requested, and thus the issues of fact were properly submitted to the jury, and upon evidence that supports their verdict. If any error was committed in not clearly defining the different province of the court and of the jury in the interpretation of the contract, no exception was taken to the instruction, and the court in fact gave the plaintiff’s writing the interpretation which the defendants requested, and by the whole charge submitted the case correctly. .

The judgment must be affirmed.

Bischoff and Pryor, JJ., concur.

Judgment affirmed, with costs.  