#### Compton, Resp’t, *v.*Heissenbuttal *et al.,*App’lts.

*(City Court of New York, General Term,*

*Filed March 10, 1891.)*

Contract—Breach—Damages.

Under a contract of affreightment defendants agreed to pay “all wharf-age at place of consignment.” They having failed to do so, after notice, the wharfinger took proceedings *in rem,*under which the vessel was seized and on notice thereof the defendants agreed to pay the bill or bond the vessel, but did neither. Plaintiff, ten days after the seizure, paid the wharfage and expenses to regain possession of the vessel. *Held,*that the amount so paid and the damage suffered by plaintiff by the detention of the vessel were recoverable under the provision of the contract; that plaintiff w'as justified in relying on the promise of defendants and waiting a reasonable time to enable them to defend before releasing the vessel by himself paying the claim.

Appeal from judgment entered upon the verdict of a jury.

*Putney, Bishop &*Slade, for app’lts; *Hyland & Zabriskie,*for resp’t.

Van Wyck, J.

Under a contract of affreightment the plaintiff agreed to transport for defendants a cargo of coal, by his canal boat “ John Le Yally,” from South Amboy to their yard at Gowanus Creek, Brooldyn, and they were to pay the freight and “ all wharfage at place of consignment.” In March, 1882, the boat with cargo reported at place of consignment alongside of the dock of one Wood, and was by defendants detained there for ten days, entitling Wood to ten dollars for wharfage, and then, by defendants’ instruction, she proceeded to New York with cargo still aboard. November, 1882, Wood presents his bill of ten*dollars to plaintiff, who informs him that defendants had agreed to pay *459it, and asks and obtains a few days in which to inform them. He sees defendant Heissenbuttal, who says: “I will settle the bill You need not look any further about the bill.” Ten days after-wards the United States marshal seizes the boat in proceedings *in*rem, instigated by Wood for the wharfage. Whereupon plaintiff again visits Heissenbuttal, who tells him: “ You need not give yourself any further trouble about it; I will either pay the bill or bond the vessel, so that you can have it; ” neither of which he does, and ten days after the seizure the plaintiff pays the marshal $55.54 costs and expenses of seizure and detention, and the wharfage of ten dollars, and thereby regains possession of his boat; and sues for these two sums, and also for $100 for the loss of the use of boat for the ten days; all of which, together with seventy-seven dollars interest, makes $242.54, the amount of the verdict. The appellant insists that the measure of damages which should prevail in this case precludes the recovery of more than ten dollars, the wharfage, and' interest thereon, and that the $55.54, the expenses and costs of regaining possession of his boat, which the plaintiff claims as damages, is too remote, and of course that the $100 for loss of the use of boat for the ten days is damage still further removed from the limit line.

By their express agreement to pay “ all wharfage ” the defendants assumed, so far as the plaintiff is concerned, a primary obligation, to which the liability of the plaintiff or his boat, is secondary, and although as to the wharfinger the boat itself can be held liable, and to that end he may, by proceedings *in rem,*have her seized and held by the executive officer of the United States court until it decrees her sale; still the defendants have in effect by their express contract agreed to avert this very disaster, by paying the wharfage, for they are presumed to know the exact course which the law will pursue in case of their failure to do so. The rule of law is that persons will be presumed to have contemplated that such damages will flow from their default as persons of ordinary care and caution would reasonably expect to result from their failure and neglect to perform some act which another is under contract to perform, and with whom and in whose stead they have agreed to perform it. The seizure and detention of a vessel is to be reasonably expected by those who have failed to pay the wharfage due for the time which she has laid alongside of the dock, and as the plaintiff first notified the defendants that the dock owner had presented a claim for wharfage, it was their duty to pay it as they had originally agreed and, upon failure to do so are liable to him for his necessary costs and expenses in releasing her from such seizure. When again they were notified of the seizure, requested to pay or defend, and promised to do either the one or the other, the plaintiff was justified in relying upon such promise and waiting a reasonable time in order that they might have the opportunity to which they were entitled of defending, before the plaintiff was called upon to release her from the seizure and regain her possession, by himself paying the claims against her, and so put a stop to all further damage.

*460The verdict of a jury should not be disturbed which finds that the plaintiff did so rely and that ten days was such reasonable time under the circumstances, and awards the usable, value of the boat for that time as damages for her detention, and also the costs and expenses of relieving her from seizure.

Judgment affirmed, with costs.

Ehrlich, Ch. J., concurs. '