p. 425of delivery. If such condition be due to actionable default on the owner’s part, it furnishes ground of off-set.
In this case, which was an action to recover a lump sum as freight, the cargo was mainly composed of a large quantity of oranges and lemons, and defendant offered to show that fifty boxes were missing at the time of delivery, and that the contents of fifty-eight more were robbed, more or less. There was no claim that there was an intentional taking by the owners. This offer was refused. Held, not error; that the quantity not delivered was an insignificant portion of the whole amount, and that the parties must have foreseen that a small portion of the cargo would, in the nature of things, be missing at the end of the voyage, and it cannot, therefore, be held that they intended the freight should not be earned in such event.
It seems, that if there had been an intentional taking of the missing fruit, there could be no recovery.
Before Sedgwick, Oh. J., Tritax and O’Gorman, JJ. ;Appeal by defendants from judgment entered on verdict for plaintiffs as directed by the court, and from order denying defendant’s motion for a new trial made upon the minutes.
The facts appear in the opinion.
Ul lo, Ruebsamen & Hubbe, and Edward 8. Hubbe, for appellant
:—I. The motion to dismiss after the close of plaintiffs’ case should have been granted and the denial of the motion was error. The charter party was not proved nor was it even offered in evidence. The answer does not admit the correctness of the copy annexed to the complaint; on the contrary it puts it very distinctly in issue and gives plaintiffs notice that the production of the original upon the trial will be insisted on.
II. The complaint should haT e been dismissed for the reason that plaintiffs’failed to prove “the true delivery of the cargo.” The learned court held that a delivery of the cargo completes the right of the common carrier to his freight and that damage to cargo is no defense to a claim for freight, but a proper subject for a counter-claim
p. 426and should have been pleaded as a counter-claim ; and that, therefore, no counter-claim being pleaded, no evidence of bad delivery was admissible under the pleadings. The error into which the learned court fell, consists in application to a suit predicated upon a charter-party, of the rule of law governing bills of lading. As between the charterer and the owner of the vessel the charter-party is the controlling contract as to all the terms or provisions which it expresses
(Parsons on Shipping & Admiralty, 1869, vol. 1, 286). Delivery of the cargo according to the terms of the charter-party is a condition precedent in an action upon a charter-party (Post
v. Robertson,
1 Johns. 24 ; 3
N. Y. Com. Law Rep. 24.)
III. Defendant’s counsel offered to prove that 963 boxes of oranges were delivered in bad condition, that 50 boxes were robbed more or less, and that 58 boxes were not delivered at all. This offer was excluded on the ground that these facts should have been pleaded as affirmative defense or as a counter-claim. Now, if the action had been for freight moneys due under a mere bill of lading, it cannot be questioned that the defendant would have had the right, under a general denial, to prove the non-delivery of 58 boxes because even in that case, delivery, although in bad condition, is a condition precedent ; and as to this point there must be a reversal in any event. And as to the delivery of other portions of the-cargo in bad condition or robbed, it is sufficient to say that in this case under the charter-party not only delivery but “true delivery,” i. <?., delivery in good condition, is a condition precedent which should have been proved in the first instance by plaintiffs, because it was put in issue by the denials of the answer.
Charles Stewart Davidson, for respondents:
I. It must be noted, that the answer admits the making of the contract, and merely denies knowledge as to the literal exactness of the copy set forth in the complaint. This is not a general denial nor is it a specific denial of any
p. 428The defendant’s claim for damages, if any, is the subject of cross-action or counter-claim, and not matter of defense (Garrett v. Milhurst, 4 Jur. N. S. 943 ; Shields v. Davis, 6 Taunt. 65 ; app’d 5 Den. 175 ; Alliston v. Herring, 11 Ex. 822 ; Meyer v. Dresses, 33 L. J. [N. S.] C. P. 289 ; Dunham v. Bower, 77 N. Y. 16 ; Schwinger v. Raymond, 83 Ib. 192). The cause of action became complete upon showing the termination of the voyage and the hauling of the vessel to the designated wharf or pier (Leslie v. Sears, 109 Mass. 424 ; The “ Norway,” 3 Moore P. C. [N. S.] 243. See also Shields v. Davis, 6 Taunt. 65 ; Davidson v. Gwynne, 12 East. 381). A defendant cannot prove damages by way of recoupment where no claim to recoup is set up in the answer (Crane v. Hardman, 4 E. D. 8. 448).
By the Court.
The action was for the balance due of a lump sum agreed to be paid by the defendant as charterer of a steam vessel to the plaintiffs as owners. The complaint alleged that the plaintiffs and defendant entered ‘ ‘ into a certain contract, whereof a copy is hereunto annexed and marked ‘ A, ’ and made a part hereof.” This copy set out a complete charter-party between the parties. The answer of the defendant admitted that on the day named in the complaint the parties entered into a “ certain contract, commonly called a charter-party, but whether the copy marked A, is a true and correct copy of the said original this defendant has no knowledge or information sufficient to form a belief, and therefore denies that it is so, and insists that the original be produced upon the trial for greater certainty.” On the trial the original was not produced. At the end of plaintiffs’ case, defendant’s counsel moved to dismiss the complaint on the ground that the answer not admitting the charter-party to have been such as the copy annexed to the complaint described, there was a failure to prove the charter-party.
The ground was not sufficient. The answer made an
p. 429issue upon whether the copy was true and correct. It would not be so if it did not reproduce parts of the original which were not essential to a description of the legal effect of the original. It would have been sufficient for the complaint to have stated that legal effect. The answer raised a false or immaterial issue, as it did not make an issue upon whether the copy set out the substance or legal effect of the contract that was made.
Another exception regards an offer made, which the counsel for plaintiffs consented should be passed upon by the court, as if its subject were contained in questions correct inform asked by defendant’s counsel of witnesses. The court overruled the offer, which was to prove that plaintiffs did not deliver 963 boxes of oranges, part of the cargo, in good condition ; that they did not deliver at all 58 boxes of the cargo ; and that they delivered 50 boxes of oranges with the contents robbed more or less.
The counsel for appellant argue that if these facts had appeared they would have proved that the plaintiffs had not made a true delivery of the cargo, the charter providing that the lump sum, excepting certain advances out of it, should be paid by the charterer on “ the true delivery of the cargo,” and, therefore, the time of payment had not come, or the fact did not exist which was by the contract to exist before there was a duty of payment.
The question then is, had the plain tiffs shown that there had been a true delivery of the cargo ? It was satisfactorily shown that all the cargo there was in the steamer at the time of arrival was delivered. The steamer, by the charter, was of the burden per net register, 1,118 tons. The defendant filled the whole cargo space of the vessel, excepting cross bunkers that would contain about 300 tons. The cargo belonging to defendant was in part 200 tons of sulphur, and the remainder was of boxes of oranges and lemons. So that the quantity of cargo not delivered according to the terms of the offer was an insignificant poiticn of the boxes of oranges and lemons stowed as cargo.
p. 430The bad condition of 963 boxes, as assumed by the offer, was no obstacle to the recovery of the lump sum. That was to be paid upon delivery, in fact, of the cargo, without reference to its poor condition at time of delivery. If the condition had become poor from an' actionable default on the part of the owners, then the defendant might have offset a proper amount if it had been claimed in the answer affirmatively. The answer did not make such a claim. The word “true” used with the word ‘
‘ delivery ” qualifies the act of delivery, not the condition of the goods delivered.
When the parties stipulated as to true delivery, they intended to apply the words to a cargo liable to diminution from slight causes, that could not in the ordinary course of a voyage be prevented, unless by a stiict and expensive custody, that the nature of the cargo did not justify, and which the defendant could not have expected from the plaintiffs. They referred to the cargo as a whole, and not to each hundred of the many thousands of oranges and lemons. According to their sense of what was likely to happen, it must have been foreseen that a small portion of the whole would be missing at the end of the voyage. It is not to be imagined that either party meant that the freight should not be earned, unless every box of fruit was delivered, for on the theory of the defendant an omission to deliver one box would have been a defense, as to any part of the claim for the lump sum. If the offer had further suggested that there was proof of an intentional taking by the plaintiffs of what was not delivered, there should be of course no recovery.
There was, in my opinion, a true delivery of the cargo within the meaning of the charter-party, and the obligation of the defendant to pay the balance of the lump sum was complete.
In Post v. Robertson ( 1 Johns. 24 ), the fact was that none of the cargo, for the carrying of which the ■ freight alleged to be due had been promised to be paid, was delivered.
p. 431The remedy of the defendant after its obligation to pay the sum liquidated by the contract had become complete, was, if the non-delivery of the part of the cargo was a breach of any express or implied obligation of the plaintiffs, to make an affirmative claim in the answer, or to bring another action.
The judgment and order appealed from should be affirmed, with costs.
Truax and O’Gorman, JJ., concurred.