John R. Glover, Appellant, v. Henry Thomas et al., Respondents

John R. Glover, Appellant, v. Henry Thomas et al., Respondents. (Argued December 8, 1875; decided December 31, 1875.) This action was brought, among other things, to recover damages for the alleged breach of a contract to transport a load of lumber to Morris’ dock, on the Harlem river. Defendant claimed, and the verdict sustained his view, that the contract was to transport the lumber to the first dock on the Harlem river, above the railroad bridge; that the man in charge of defendants’ barge, by plaintiff’s direction, he guaranteeing that there was enough water, attempted to deliver the lumber at Morris’ dock, but in consequence of low water the barge ran aground and was badly injured. Defendants sought to counter-claim damages. Upon the trial defendants were allowed to prove the damages to their barge. Held, error; that defendants were not entitled to the damages; that under the contract, as claimed and proved by defendants, they were not bound to convey the lumber to Morris’ dock, and if they ‘ undertook to do so and met with an injury, plaintiff was not liable; that, if it was assumed that the prior, agreement made with defendants was modified by the direction to the man in charge of the barge, defendants were bound, when they found a deficiency of water, to go no further. They could have notified plaintiff and waited further instructions; not receiving them, they could have unloaded the lumber at the nearest dock, charging plaintiff with ■expenses of delay, etc., but they could not attempt to force their way in shallow water to the injury of their 'vessel and then charge the damage to plaintiff. Samuel Hand for the appellant. Edward Daly for the respondents. [MAJORITY — Earl, J.,] Earl, J., reads for reversal of order and judgment of General Term and affirmance of order of City Court of Brooklyn setting aside verdict and granting a new trial. All concur. Ordered accordingly.