37 F. 806 | S.D.N.Y. | 1889
The evidence shows that none of the cattle or sheep that were first designed to be sent by the Tower Hill were kept until she sailed. The libelant was in the business of purchasing cattle in the west, to be shipped to this port, and thence forwarded by steamer. Of those originally designed for the Tower Hill, 117 were forwarded by the steamer Helvetia, which sailed on October 7th, belonging to another line; the rest were sold to butchers in this city. All the sheep first brought were likewise sold. At the end of the trial two adjournments were had to allow the libelant to furnish legal evidence of the kinds of damage sustained. No further evidence was introduced; and, upon the cause thus submitted, there is no sufficient proof of any loss to the libelant on the cattle or the sheep sold. The libelant failed to appear for examination; and the evidence of his clerk and book-keeper is quite indefinite as to the small loss which he thinks arose on the sale of the sheep. No claim for that item was made on the respondents before suit.
As respects the 117 cattle for which damages are claimed for their keep and loss in weight from October 3d until the Helvetia sailed, on October 7th, there is no certain evidence that they arrived by October 3d, or any sooner than was necessary to ship them on the Helvetia. Again, from the failure to prove any loss on the remainder of the consignment that was sold, it must be inferred that the 117 could also have been sold without loss, had the libelant chosen to sell them. If so, he could not keep them here for the purpose of sending them on the Helvetia, and then charge the respondents for keeping them in the mean time. The inability of the respondents to have their vessel sail upon the day assigned, and the subsequent several delays, were all accidental, and without any fault on their part. Hie libelant had noticie of the expected delays. In such a case, the other contracting party is held to reasonable care and exertion to render the injury as light as possible. Hamilton v. McPherson, 28 N. Y. 72, 77. If, therefore, the 117 cattle were kept over for the Helvetia, there is no evidence to show that the respondents are chargeable for this item. It was the libelant’s voluntary act.
There is no evidence of any damages sustained in holding back the cattle or sheep first designed for the Tower Hill.
The respondents are liable for the keep and loss of weight on the second lot of cattle and sheep, upon the last postponement from October 14th to October 15th. The cost of “keeping” here is for cattle, 50 cents per head a day; and for sheep, 10 cents. This item is $187.50; for loss of weight, $266.87; making in all, $454.37, for which a decree may be entered, with interest since October 15, 1888, with costs.