Bryan, J.,
delivered the opinion of the Court.
There was some conflict of evidence in this case. According to the testimony for the plaintiff below (who is now appellee,) he through his agents, Alden and Nevin, contracted to sell and deliver to the defendant (who is now appellant) five thousand tons of coal to be delivered free on board the defendant’s vessel at Baltimore. The contract was as follows: “Order No. 24, Boston, June 24th, 1890. Ehlen Bros., sold to Messrs. C. A. Campbell & Co., Chelsea, Mass. To be shipped, as ordered. 22 feet Water No. — , Beam No. — . Bridges not insure. 5,000 tons of Big Vein Cumberland coal at. [99]*99§2.15 f. o. b.; they will send their own vessel. We think they will take their first cargo soon; will advise us in a day or two. Tours truly, Alden & Nevin. ” During the summer and early fall of 1890, twenty-five hundred tons of the coal were delivered by the plaintiff and duly paid for by the defendant. In the month of November, 1890, in consequence of negotiations between Alden and Nevin, the plaintiff’s agents and the defendant, it was agreed that the plaintiff should load the schooner “'Charles A. Campbell” with the remainder of the coal, and the schooner came to Baltimore; the plaintiff did not make a contract to load the vessel at any specified time, but only to complete the loading’ as soon as possible. On the sixth day of December, the defendant came to Baltimore and had an interview with the plaintiff, and having heard his explanations about the great difficulty of getting transportation for coal from the mines, and the inevitable delay in loading, and the impossibility for the plaintiff to fix any time for doing so, he expressed himself as perfectly satisfied. On the seventh day of January, 1891, the full cargo was placed on board the schooner Charles A. Campbell, amounting to twenty-five hundred and sixteen tons, and the captain signed bills of lading without protest, and without making any claim for damages on account of delay or for demurrage; and he did not at any time during the delivery of the coal in Baltimore claim that the plaintiff had agreed to load the vessel within a stipulated time. The foregoing statement is the substance of the evidence in behalf of the plaintiff on the subject of the contract and its fulfilment.
On the part of the defendant the evidence contradicted the plaintiff’s case in very important particulars. It tended to show that when the schooner arrived at the port of Baltimore in November, 1890, she was light and ready for loading, and that her master (Hall,) on the [100]*100first day of December, reported her arrival to the plaintiff, and gave him notice that the vessel was ready for loading; that before she sailed from Boston the plaintiff agreed with the defendant to load her during the first week of December; that the delay in loading was caused by the fault of the plaintiff; that the master of the schooner gave notice to the defendant of the plaintiff’s action in respect to the delay in loading, and that finally in an interview with the defendant who was part owner of the schooner and was acting in behalf of the other owners, the plaintiff promised and agreed that he would complete the loading on or before the fifteenth of December. The principal conflict of evidence occurs on the question whether the plaintiff was bound to complete the loading on or before the fifteenth of December.
The schooner arrived at the port of Boston on the fourteenth day of January, 1891, and after discharging about nine hundred tons of coal, the master on the next day filed a libel in the Admiralty for demurrage, alleging that the plaintiff in this action had made a verbal contract of affreightment’with the defendant, who was then acting in behalf of the owners of the schooner, and that by the terms of the contract of affreightment the plaintiff was bound to begin loading immediately upon notice of the arrival of the schooner at Baltimore, and to load her at the rate of a hundred and fifty tons of coal per working day until she had a full cargo, and that in case the vessel should be detained longer than was necessary to load her at that rate, he would pay demurrage at the rate of six cents per ton upon the number of tons named in the bill of lading, for each and every day that she should be so detained. Notice of this proceeding was promptly given to Ehlen by Campbell. No person appearing for the defence, the libel was taken pro confesso, and after an ex parte hearing, it was decreed that the portion of the cargo which had not been [101]*101discharged should be sold by public auction. It was sold and bought by this defendant. In the libel suit a petition was filed by Morse, who styled himself the managing owner of the schooner, claiming freight alleged to be due by this plaintiff, and a decree was passed that it should be paid out of the proceeds of sale of the cargo. The expenses of sale, costs of suit, and the amounts of the decrees for demurrage and freight exceeded the sum of money for which the cargo was sold.
The plaintiff offered two prayers which were granted by the Court. By them the jury were instructed in substance that by the written contract and bill of lading the property in the coal passed to the defendant as soon as it was put on board of the schooner, and that from that time the plaintiff had no further interest in the coal, and that he was not affected by the Admiralty proceedings for its sale; and that if the plaintiff did not agree to load the schooner within any particular time, but only to do the best lie could for her, and if the defendant consented that the schooner should remain, and be so loaded, and if the plaintiff was not guilty of any neglect or default in the loading, but did all he could to effect it promptly; then he was entitled to recover the contract price of so much of the coal as had not been paid for, with interest in the discretion of the jury. The defendant offered two prayers which were rejected by the Court. The first prayer insisted that the plaintiff’s rights were concluded by the Admiralty proceedings, inasmuch as he had received notice of their pendency. The second prayer maintained that if the agreement was to load the schooner on or before the fifteenth of December, and the plaintiff did not complete the loading until the seventh of January, that the Admiralty proceedings were binding on him, if he received immediate notice of them from the defendant.
[102]*102There was evidence competent to sustain the plaintiff’s theory of the facts. According to this theory the coal was sold to the defendant with the stipulation that it was to he delivered on hoard the defendant’s vessel at Baltimore, and no special time was fixed for the delivery; hut the agreement was that the plaintiff was to do the best he could in loading the vessel, and in point of fact ’ he did load her as promptly as it was in his power to do. Upon the finding of these facts by the jury the plaintiff’s right to recover was clearly established. It was a very simple case of a sale of goods, and a delivery according to the terms of the contract. The coal became the property of the defendant as soon as it was loaded on board the schooner at the port of Baltimore, and the plaintiff had no further interest in it. The plaintiff’s contract was then fulfilled, and it became the duty of the defendant to pay according to the terms of sale. The coal'was libelled in the Admiralty in Boston for demurrage by the master of the vessel, of which the defendant was part owner, and on which it had been loaded by his direction, and at the sale it was purchased by him.
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Bryan, J.,
delivered the opinion of the Court.
There was some conflict of evidence in this case. According to the testimony for the plaintiff below (who is now appellee,) he through his agents, Alden and Nevin, contracted to sell and deliver to the defendant (who is now appellant) five thousand tons of coal to be delivered free on board the defendant’s vessel at Baltimore. The contract was as follows: “Order No. 24, Boston, June 24th, 1890. Ehlen Bros., sold to Messrs. C. A. Campbell & Co., Chelsea, Mass. To be shipped, as ordered. 22 feet Water No. — , Beam No. — . Bridges not insure. 5,000 tons of Big Vein Cumberland coal at. [99]*99§2.15 f. o. b.; they will send their own vessel. We think they will take their first cargo soon; will advise us in a day or two. Tours truly, Alden & Nevin. ” During the summer and early fall of 1890, twenty-five hundred tons of the coal were delivered by the plaintiff and duly paid for by the defendant. In the month of November, 1890, in consequence of negotiations between Alden and Nevin, the plaintiff’s agents and the defendant, it was agreed that the plaintiff should load the schooner “'Charles A. Campbell” with the remainder of the coal, and the schooner came to Baltimore; the plaintiff did not make a contract to load the vessel at any specified time, but only to complete the loading’ as soon as possible. On the sixth day of December, the defendant came to Baltimore and had an interview with the plaintiff, and having heard his explanations about the great difficulty of getting transportation for coal from the mines, and the inevitable delay in loading, and the impossibility for the plaintiff to fix any time for doing so, he expressed himself as perfectly satisfied. On the seventh day of January, 1891, the full cargo was placed on board the schooner Charles A. Campbell, amounting to twenty-five hundred and sixteen tons, and the captain signed bills of lading without protest, and without making any claim for damages on account of delay or for demurrage; and he did not at any time during the delivery of the coal in Baltimore claim that the plaintiff had agreed to load the vessel within a stipulated time. The foregoing statement is the substance of the evidence in behalf of the plaintiff on the subject of the contract and its fulfilment.
On the part of the defendant the evidence contradicted the plaintiff’s case in very important particulars. It tended to show that when the schooner arrived at the port of Baltimore in November, 1890, she was light and ready for loading, and that her master (Hall,) on the [100]*100first day of December, reported her arrival to the plaintiff, and gave him notice that the vessel was ready for loading; that before she sailed from Boston the plaintiff agreed with the defendant to load her during the first week of December; that the delay in loading was caused by the fault of the plaintiff; that the master of the schooner gave notice to the defendant of the plaintiff’s action in respect to the delay in loading, and that finally in an interview with the defendant who was part owner of the schooner and was acting in behalf of the other owners, the plaintiff promised and agreed that he would complete the loading on or before the fifteenth of December. The principal conflict of evidence occurs on the question whether the plaintiff was bound to complete the loading on or before the fifteenth of December.
The schooner arrived at the port of Boston on the fourteenth day of January, 1891, and after discharging about nine hundred tons of coal, the master on the next day filed a libel in the Admiralty for demurrage, alleging that the plaintiff in this action had made a verbal contract of affreightment’with the defendant, who was then acting in behalf of the owners of the schooner, and that by the terms of the contract of affreightment the plaintiff was bound to begin loading immediately upon notice of the arrival of the schooner at Baltimore, and to load her at the rate of a hundred and fifty tons of coal per working day until she had a full cargo, and that in case the vessel should be detained longer than was necessary to load her at that rate, he would pay demurrage at the rate of six cents per ton upon the number of tons named in the bill of lading, for each and every day that she should be so detained. Notice of this proceeding was promptly given to Ehlen by Campbell. No person appearing for the defence, the libel was taken pro confesso, and after an ex parte hearing, it was decreed that the portion of the cargo which had not been [101]*101discharged should be sold by public auction. It was sold and bought by this defendant. In the libel suit a petition was filed by Morse, who styled himself the managing owner of the schooner, claiming freight alleged to be due by this plaintiff, and a decree was passed that it should be paid out of the proceeds of sale of the cargo. The expenses of sale, costs of suit, and the amounts of the decrees for demurrage and freight exceeded the sum of money for which the cargo was sold.
The plaintiff offered two prayers which were granted by the Court. By them the jury were instructed in substance that by the written contract and bill of lading the property in the coal passed to the defendant as soon as it was put on board of the schooner, and that from that time the plaintiff had no further interest in the coal, and that he was not affected by the Admiralty proceedings for its sale; and that if the plaintiff did not agree to load the schooner within any particular time, but only to do the best lie could for her, and if the defendant consented that the schooner should remain, and be so loaded, and if the plaintiff was not guilty of any neglect or default in the loading, but did all he could to effect it promptly; then he was entitled to recover the contract price of so much of the coal as had not been paid for, with interest in the discretion of the jury. The defendant offered two prayers which were rejected by the Court. The first prayer insisted that the plaintiff’s rights were concluded by the Admiralty proceedings, inasmuch as he had received notice of their pendency. The second prayer maintained that if the agreement was to load the schooner on or before the fifteenth of December, and the plaintiff did not complete the loading until the seventh of January, that the Admiralty proceedings were binding on him, if he received immediate notice of them from the defendant.
[102]*102There was evidence competent to sustain the plaintiff’s theory of the facts. According to this theory the coal was sold to the defendant with the stipulation that it was to he delivered on hoard the defendant’s vessel at Baltimore, and no special time was fixed for the delivery; hut the agreement was that the plaintiff was to do the best he could in loading the vessel, and in point of fact ’ he did load her as promptly as it was in his power to do. Upon the finding of these facts by the jury the plaintiff’s right to recover was clearly established. It was a very simple case of a sale of goods, and a delivery according to the terms of the contract. The coal became the property of the defendant as soon as it was loaded on board the schooner at the port of Baltimore, and the plaintiff had no further interest in it. The plaintiff’s contract was then fulfilled, and it became the duty of the defendant to pay according to the terms of sale. The coal'was libelled in the Admiralty in Boston for demurrage by the master of the vessel, of which the defendant was part owner, and on which it had been loaded by his direction, and at the sale it was purchased by him. Another part owner of the vessel filed a claim in the Admiralty suit for freight and both these claims were allowed; with the exception of about nine hundred tons, which had been delivered before the institution of the Admiralty proceedings, the entire value of the cargo was consumed in paying these claims and the costs incurred in the suit. It would be a strange .anomaly if the plaintiff’s interests could be affected by such proceedings as these conducted in reference to merchandise, which did not belong to him. But there was evidence on the part of the defendant tending to show that the plaintiff was in default in regard to the time of the delivery of the coal, in that he did not load the vessel on or before the fifteenth of December. Suppose this to be so; it was received by [103]*103the master of the vessel, who was appointed by the defendant to receive it; no claim was made at the time for damage caused by the delay, and a bill of lading was signed by the master for its delivery to the defendant or his assigns, he or they paying freight. If under these circumstances there could be any reclamation in behalf of the defendant, assuredly it would not be such as is claimed by him in his prayers. All the evidence on both sides in relation to the sale and delivery of the coal shows that it was to be delivered on board of the vessel owned in part by the defendant, and that he was acting-in behalf of the other owners; nothing whatever was testified which tended in the remotest degree to show that the plaintiff had contracted to pay freight or demurrage; but everything strongly negatived such a supposition. How could it be possible then that the statements of the master of the vessel and Morse, one of the owners, in the Admiralty suit could be evidence against the plaintiff. They state that the plaintiff made a verbal contract of affreightment; that he agreed to pay demurrage and freight at certain rates per ton specifically stipulated. We could hardly imagine a more signal violation of the rules of evidence than the admission of such testimony. Assuming that the plaintiff had committed a default by not delivering the coal in time; yet it is most clear that when it was delivered and accepted it became the property of the defendant. It was shipped on a vessel of which he was part owner by his directions given while he was representing the other owners. The record does not show what were his responsibilities to the other owners; but there is no legitimate evidence in this record which shows that he could involve the plaintiff in a liability for freight or demur-rage.
(Decided 7th June, 1892.)
Judgment affirmed.