52 Barb. 40 | N.Y. Sup. Ct. | 1868
We are of opinion that the judgment cannot be supported, for several reasons.
First. The plaintiff was allowed to recover for loading and unloading the stone, which seiwice was included in the $150 which he was to receive for transporting the stone. In the recovery, the plaintiff was allowed $100, which sum embraced all the charges attending such transportation, except the $50 which he agreed to pay the defendant for towing the sloop. It, therefore, appears quite clear, to my mind, that the plaintiff" in recovering the $100,
Second. We are also of opinion that the learned county judge erred in his instructions to the jury. He charged, among other things, as follows: “ That if the jury find from the evidence that at the time of making the agreement the defendant had reason to apprehend that from the lateness of the season there was danger that ice might form in the river, he took that risk upon himself, and if prevented 'from fulfilling the contract in consequence of ice in the river, this furnished no defense to the defend
The counsel for the defendant relies upon the case of Harmony v. Bingham, (12 N. Y. Rep. 100.) This case is clearly distinguishable from the one at bar, in one material particular. In the case cited, the party was not confined to a particular route, and it appears that at the time the agreement was made, both parties knew that there was another route upon which the goods could have been transported, and hence the failing party was not absolutely prevented from performing his contract. In the case at bar, the sloop was to be towed upon the Hudson river, and not elsewhere. The case cited is in other respects inapplicable to the one under consideration. If, therefore, the jury were at liberty, from the evidence, to adopt the defendant’s theory, which doubtless they were, we are clearly of opinion that the. judge erred, to the prejudice of the defendant’s case, in instructing the jury, in substance, that although navigation was prevented by the act of God, yet the defendant was liable, if at the time he contracted he had reason to apprehend that navigation would be thus prevented before the contract wras to be performed, as he should have provided for such a contingency, in the agreement. The jury may have come to the conclusion that the storm, and freezing of the river, was of itself a sufficient excuse for the defendant’s failure to perform his agreement, yet may have felt bound to render a verdict against him on the ground that he omitted to provide, in his contract, against such a contingency. The case was unquestionably a proper one for the jury, as there was a conflict in the evidence.
We, therefore, conclude that, for the reasons assigned, the judgment must be reversed, and a new trial ordered, costs to abide the event.
Ingalls, Hogetoom and PecJeham, Justices.]