1 Keyes 335 | NY | 1864
The dock sticks, by the terms of the contract, were to be of specified length, and not less than seven inches in diameter at the small or top end; and the spruce trees on the lot, over fourteen inches in diameter at the butt, and suitable for spars were tobe cut and transported to the New York market on shares. Some of the dock sticks (but how many is not found) were not so large as the contract prescribed, and the largest of the spars (how many is not known) on being inspected and tested, after transportation, were found to be of inferior quality. It is because the contract was not strictly performed in respect to the size of ¿11 the dock sticks, and to the quality of all the spars, it is now urged that the plaintiff is not entitled to recover anything for his work, or if anything, not the full contract price. It may be conceded that the position would be sound, if the defendants had not waived a strict performance; but it is clear, in this case, that they assented to and acquiesced-in whatever deviations there were from the contract, either in the size of the dock sticks that were under the size prescribed, or in the quality of the larger spars for the purposes intended, which the referee finds (and it is only upon his findings that any question of non-performance by the plaintiff can be raised), that some of the dock sticks were smaller than the contract called for, and the largest of the spars were of inferior quality, owing to knots and galls in the material on which the plaintiff’s labor was employed; in connection therewith, he further finds that the defendants made no objection to the dock logs, or to the spars, got out in the execution of the contract, either while they were being cut down and prepared for market, or before or after they were accepted and sold by them, although they had sufficient opportunity, both on the lot and at New York, to inspect and ascertain the deficiency as to size of said dock logs that were smaller than the dimensions prescribed by the contract, and of the quality of the larger spruce logs designed for spars. They employed the plaintiff to cut down, prepare
It appears that while transporting to Hew York the dock sticks, piles and spars cut upon the lot the plaintiff lost on the way 132 sticks. This loss was caused principally by reason of an unusual flood, by mere casualty, against which ordinary prudence and diligence could not protect, and without lack of care or skill on the part of the plaintiff. The referee held that the plaintiff was not liable for this loss. This was correct. It was occasioned by the flood, and not by any carelessness or improper conduct of the plaintiff. He was' not acting in the premises as a common- carrier; and his duty extended no farther than to the exercise of ordinary prudence, care and skill in protecting the property- from loss or damage. The judgment should be affirmed.
The main ground of defense was a claim for damages set up by the defendants against the plaintiff for having cut and removed logs and piles of a less size than contemplated by the original agreement. No objection appears to have been made that the • whole number had not been delivered. The defendants, having had the opportunity to examine the logs while in the woods, and afterward at New York, and having accepted them at the latter place, cannot afterward deny their liability to pay for them, whatever the services were worth which the plaintiff had rendered. Those services were rendered under the contract between the parties, and the terms of that contract would settle the amount to be paid, unless it was shown that in consequence of the variation in size the compensation should have been diminished. (Sickles v. Patterson, 14 Wend., 257.) But in such a case the defendants should furnish evidence of any damages they had sustained. Having received the logs at the place of delivery and sold some without objection, they must be considered as waiving the objection which might have been made to their size, although they might have shown the value of the services rendered to have been less than the contract price. There is no such evidence, and for aught that appears in the case the referee might have concluded there was no difference in the value of the services rendered from that specified in the contract, and that the defendants had, by acceptance of the property, waived any claim therefor.
The second point of the appellants is that the referee erred in allowing the plaintiff the value of one-half of the spars. What was the value and whether the defendants sold them according to the terms of the agreement, was a question of fact for the referee. He evidently has found against the defendants on the ground that the spars should have been sold by themselves, and that they could not be used by selling them with the dock logs and piles to increase the value of the latter at the plaintiff’s expense. There was evidence given of their value, ample to sustain the finding of the referee on this branch of the case. Even if the spars were
■The defendants, 'on the trial, seem to have considered themselves entitled to recover from the plaintiff, as damages, the difference between the sticks as delivered and the value of them if they had been of the size stated in the contract. ■ This they would not have been entitled to if on receiving the logs with knowledge of the variance from the contract they had waived their right to insist upon a full performance of the contract. The referee has found such waiver.
The plaintiff was not a common carrier in regard to the property he was transporting. He was required to use care and skill in the discharge of his duty, but was not liable for loss arising from severe storms or floods. There is nothing to show that the plaintiff ever acted as a common carrier; on the contrary, this appears to have been a special contract, made in reference to this special property, and there is no ground to suppose that the plaintiff had ever been engaged in similar business. There was no error in this respect.
Although the defendants might have reduced the recovery against them by evidence, showing the value of the services rendered to have been less than the contract price, yet, not having done so, and having waived the objection by accepting the logs and selling them without any notice to the plaintiff, there is no ground on which this court could interfere.
The judgment should be affirmed.
Mullen, J., and Heneo, Ch. J., were for reversal; all the other judges being for affirmance,
Judgment affirmed.
