Read v. President of the Delaware & Hudson Canal Co.

By the Court —

The finding of the referee that the boats furnished by the plaintiffs for the transportation of the coal, were kept and detained by the defendants, through their fault, to which exception was taken, I think is sustained by the testimony. By the contract the defendants agreed to deliver the coal to the plaintiffs in the month of October, 1868, upon, boats to be furnished by the plaintiffs. The plaintiffs furnished the necessary boats during the month of October, in accordance with the contract, but the defendants failed to deliver the coal, and kept the boats waiting until the latter part of the month of Hovember. It was not therefore the fault of the plaintiffs that the coal was not delivered according to contract, and that the' boats were detained. And as the coal was not delivered as agreed upon, it necessarily follows that it was the fault of the defendants. They failed to comply with the terms of the contract, while the plaintiffs were ready to fulfill, and therefore the defendants were in fault. The defendants seek to excuse the detention by the usage and custom -which obtains in such cases, and *215insist that the time from which the detention is to he reckoned commenced when the boats were at their loading places in their order, and not when they arrived at the port. (Brereton v. Chapman, 7 Bing., 559 ; Hill v. Anderson, 10 Mees. & W., 498.) I think this cannot be done where there is a specific agreement to deliver the coal within a specified time, and the plaintiffs were ready to perform at the time named. Ho usage or custom can be set up to control the rules of law, or to contradict the agreement of parties. The agreement must control, and, where an express contract is made, the parties must be held to its terms strictly, and no excuse is generally available for delay, even if it be without the fault of the party which is not stipulated in the contract. (Cross v. Beard, 26 N. Y., 85 ; Wadsworth v. Alcott, 2 Seld., 72.) Where a contract prescribes the time of delivery, no temporary obstruction or even the absolute impossibility of complying with the engagement will be a defence for a failure to perform. (Angel on Carriers, § 294.) Conceding the correctness' of the rule in ordinary cases that the boats were bound to await their turn in reaching the loading places, and that this is an excuse for a detention, and will usually bar a recovery for damages during the time they are so waiting; and taking also into consideration that the testimony showed a lack of coal on hand, and that there were breaks in the canal and other difficulties in the way of delivering the coal at the time named in the contract, yet I do not understand that these excuses are sufficient where there is a specific time agreed upon for the delivery. In such cases the party must live up to his contract at all hazards and cannot avail himself of excuses which might properly and lawfully be invoked where the agreement was not explicit and fixed in its terms.

I think that the finding of the referee that in the month of October the plaintiffs demanded the coal of the defendants, and that the defendants refused to deliver it was warranted by the testimony. The complaint alleges a demand, and the answer does not deny the allegation. One of the plaintiffs testifies that he demanded of the defendants the *216whole of the coal which was not previously delivered on the 29th or 30th of October, of a person in the office, and he did not deliver it, but promised to do so. This evideneé of itself was sufficient I think, to authorize the conclusion of the referee, that a demand was made independent of any admission which may have been made by the pleadings.

■ The question put to one of the plaintiffs’ witnesses as to his understanding that all the boats were to take their turn in loading in the order in which they entered, was properly excluded by the referee. It is enough to say, that it called for the witness’ opinion or knowledge as to a matter which had nothing to do with the contract between the parties.

There was no error upon the trial, and the judgment must he affirmed with costs.

Judgment affirmed.