Hassett v. McArdle

Co., 134 N. Y. 15 ; 45 St. Rep. 379 ; Chicago & G. E. R. R. Co. v. Dane, 43 N. Y. 241 . The evidence clearly establishes such •an acceptance and agreement on the part of defendant. 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 defendant’s obligation went to that extent at least. The written proposition was to carry 200 tons at 50 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 ths 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 200 tons for $100 (and that being the minimum freight for any less quantity) the conclusion is inevitable that defendant intended by liis order that plaintiff should understand that he 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 the cargo. This was not done, because the dock-master would not permit plaintiff’s boat to lie idle at the wharf 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 wharf-master 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 Jr., “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 defendant’s 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 obligation thereunder, are the only ones discussed by appellant on his brief, no others are considered. The trial court charged upon the law of the case in all respects as the defendants 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. All concur