Daniel S. Read et al. v. The President, etc., of the Delaware and Hudson Canal Company

Daniel S. Read et al. v. The President, etc., of the Delaware and Hudson Canal Company. (Argued February 32, 1872; decided March 26, 1872.) Action on a contract by which defendants agreed to deliver a quantity of coal to plaintiffs at Rondout in October, 1868, on board of boats to be furnished by plaintiffs. On account of the crowd of boats waiting for coal, plaintiffs’ boats were unable to get up to the places of delivery in October. October 27th plaintiffs wrote, asking as a great favor “.for further time to get the coal away.” This was refused unless they paid the increased price for the next month. October 29th or 30th plaintiffs went to Rondout and demanded the coal, which demand defendants refused. Plaintiffs’ boats were not then at the places of delivery. Plaintiffs claim damages for breach of contract and demurrage for the detention of their boats, which occurred substantially in November. Defendants offered evidence to show that it was the usage for vessels to take their turn in order of arrival, “ first come first served,” which the referee rejected. Held, that the contract necessarily implied that plaintiffs should have their boats at the usual places where coal was shipped or delivered by defendants, and that the failure to do so was a good defence unless defendants in some manner prevented plaintiffs from performing on their part; that such interference was not shown by the fact that other boats were there in the ordinary course of business to receive coal, which prevented plaintiffs’ boats from going directly to the place of delivery. The burden of showing a right to or preference of access to the place of delivery rested upon plaintiffs. But if the contract was broken by defendants’ refusal to deliver, plaintiffs could only recover the difference between the price agreed upon and the actual value of the coal. They could not recover demurrage. S. P. Nash for the appellants. D. 8. Morrell for the respondents. [MAJORITY — Peckham, J.,] Peckham, J., reads for reversal and new trial. All concur. Judgment reversed and new trial ordered, costs to abide event.