Huntley v. Dows , 55 Barb. 310 ( 1864 )

By the Court, Foster, J.

There was no contract proved to pay demurrage. And there was no proof of any custom át the port of' Hew York to allow demurrage. And it appeared that the defendants were not the owners of the grain, it having been consigned to them by an agent of the owner, who had drawn his individual draft upon the dedefendants for $6000, to reimburse himself for advances which he had before made upon the cargo, and that draft on the defendants was drawn against the cargo.

The defendants, therefore, are only liable for an improper detention at Hew York, arising from their own misconduct or neglect. The boat arrived at Hew York, and the defendants were notified thereof on the morning of Tuesday the 20th or 21st day of Hovember, 1860, at 8 o’clock. From that time to the afternoon of Thursday following, the plaintiff repeatedly called upon the "defendants to discharge the cargo, but instead of attempting to provide a place to unload the boat, they were engaged in trying to effect a private sale of the grain.

On the afternoon of Thursday the defendants gave the plaintiff an order upon a warehouseman to unload the boat, and they commenced unloading it on the following Saturday, in„her regular turn, and finished unloading it on Monday afternoon, and the boat was unloaded, after her arrival at the warehouse, as soon as could be.

I think the defendants were liable for such detention as took place while they were endeavoring to effect a sale of the wheat, instead of trying to provide a place to unload it. It was their duty to provide at the earliest moment practicable a place for its storage; and they had no right to detain the plaintiff and his boat while they could effect a sale. The plaintiffj therefore, was entitled to recover for the two and a half days, while thus kept waiting, which, according to the testimony, amounted to $125, and the interest thereon from that date. Beyond that amount the plaintiff was not entitled to recover; because it does not appear that, after the two and a half days, there was any unnecessary delay,- and because it does appear that within three working days- thereafter the cargo was discharged.

[Onondaga General Term, June 28, 1864.

’ It is claimed by the defendants that the plaintiff, after thé wheat was discharged, settled with them and gave his receipt in full for his freight and all charges, which receipt discharged the claim of demurrage. The receipt is as follows : “Received, ¡New York, ¡Nov. 26th, 1§60, of Messrs*. David Dows & Co., eight hundred and four dollars, in full for freight and charges, on boat J. J. Austin. A. Huntley.” It was also proved that the $804, included in the receipt, covered only the amount due for freight and the sum paid by the plaintiff for towage, which, by the terms of the bill of lading, was to be paid by the consignee. I think the receipt was not evidence that the claim for demurrage was settled. The term “charges” does not apply to sucha claim, but refers only to such expenses as the master of the boat has paid, and for which he has a lien upon the cargo.

The recovery, therefore, should have been for the two and a half days’ detention, as before stated, and the interest thereon. The judgment must be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff shall elect to reduce the damages to the sum of $125, and interest from ¡¡November 26th, 1860; and, in that event, no costs of this appeal to be allowed to either party.

Morgan, Bacon and Foster, Justices.]