1 Daly 327 | New York Court of Common Pleas | 1863
Lead Opinion
The averment in the complaint was that the plaintiffs were ready and offered to deliver the property at the usual and ordinary place of delivery, hut that the defendants requested them to deliver it at a different place, agreeing to pay them for delivering it at that place a reasonable compensation, together with tlie costs and charges incurred by so doing.
They proved that their usual place of delivery was Pier Yo. 7, East River; that immediately upon the arrival of the • boat, they gave notice of their readiness to deliver at- that place, advising the defendants that the property would he at the risk of the owner or consignee, when landed on the wharf, and that it would he subject to lighterage, in addition to freight and charges, if taken out elsewhere than in the slip. After the delivery of this notice to the defendants, the plaintiffs received a written request to send the boat to Pier No. 3, East River, to deliver the cargo, Pier No. 3 being at the foot of Broad street, and the defendants’ place of business being at No. 102 Bi-oad street. To this written request the name of the defendants’ firm was signed as follows: Hawley & Howe, per F. S. Hall; F. S. Hall, according to the hill of lading, having, as -agent, shipped the cargo from Tonawanda by the plaintiffs’ boat to the defendants’ address. The plaintiffs accordingly sent their boat to pier Yo. 3, where the cargo was delivered to the defendants.
The plaintiffs are a corporation engaged in the transportation of merchandise between the cities of Buffalo and Yew York, by the way of the Erie Canal and the Hudson River. They proved that their usual place for the delivery of cargoes by canal boats was pier Yo." 7 East River, and the fact that the defendants’ address, 102 Broad street, was stated in the bill of lading, did not oblige the plaintiffs to depart from their usual place of delivery, and deliver this particular cargo at a pier more contiguous to the defendants’place of business. Having notified the defendants of the arrival of the boat, and of their readiness to deliver at Pier Yo. 7, they did all, in my judgment, that they were required to do under the contract. (Rowland v. Miln, 2 Hilt. 150; Ostrander v. Brown, 15 Johns. 39; Gibson v. Culver, 17 Wend. 305.
I do not think that the evidence showed that the tariff of charges for lighterage agreed upon by the transportation com panies had been so generally acquiesced in as to become estab lishcd as a custom, or that any custom existed as to the right to demand lighterage in such cases. Indeed, I do not understand how the term can be considered applicable to such a case, the ordinary signification of lighterage being the price paid for unloading ships by lighters or boats. Here there was nothing of the kind, but simply the unloading of a canal boat at one wharf or pier instead of .another. The term as used in the plain tiffs’ printed notice undoubtedly meant additional compensation beyond the freight and ordinary charges, and this the defendants, in my opinion, were obliged to pay, not in consequence of an established custom, hut from an implied understanding that they would pay what was fair and reasonable, and what would he a reasonable compensation could be determined by the jury upon the evidence.
No right to exact demurrage was shown. Demurrage is recoverable only where it has been expressly stipulated for,
It was shown that the actual expense for towing the boat from Pier Eo. 7 to Eo. 3 would be $3 ; but the plaintiffs’ claim upon the implied agreement for extra compensation would not be limited to the amount actually paid out by them for towing the vessel from one pier to another. It was in evidence that it was necessary in the transportation business for the various companies generally to have some place for receiving property brought by them to the city by canal. It was shown that the plaintiffs had a pier for that purpose, and it is inferable from that fact that it was more convenient for them and facilitated their business to deliver their cargoes there rather than elsewhere. The transportation companies had agreed among themselves as to a tariff of prices which had no reference whatever to the distance to which the vessel might be moved about the city, but was demanded if the property was taken out elsewhere than in the slip where cargoes were ordinarily delivered. This was the express stipulation in the printed notice served by the plaintiffs before they received the order to send the boat to pier Eo. 3, and under this agreement, they were entitled, “in addition to freight and charges,” to an extra compensation, the amount of which, under the circumstances, could be fixed only by the jury.
Brady, J.—I concur.
Dissenting Opinion
(dissenting.)—I agree that the question as to what
would be a reasonable compensation for towing the barge" from Pier J to Pier 3 should have been submitted to the jury, but on looking into the printed case I find that, apart from the alleged custom upon which this action is sought to be maintained, but which was not established, the only proof upon the question of compensation was, that it would cost three dollars to remove the barge from one pier to the other. It certainly cannot be material to order a new trial for so small a sum¡ and I think in this case we should apply the maxim “ De minimus non curat lex” and affirm the judgment.
Judgment reversed, and a new trial ordered.