CASES ON THE CARRIERS PART I INTRODUCTORY TOPICS CHAPTER I THE LIABILITY OF A BAILEE FOR DAMAGE YOUNG v. LEARY. (Court of Appeals of New York, 1892. 135 N. Y. 569, 32 N. E. 607.) Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made November 5, 1891, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. This was an action upon a guaranty. The facts so far as material are stated in the opinion. PECKHAM, J. The questions in this case arise out of a charter party2 executed on the 17th of October, 1884, by the Washburn Steamboat Company and one McKay, for whom the defendant became surety. The company on the day mentioned let, and McKay hired, the steam propeller called the Alicia A. Washburn, of which the company was the owner, for the term of 12 months from October 17, 1884, to be employed in lawful trade between Key West and other points on the West Florida coast, on the terms and conditions mentioned in the char 1 Parts of the opinion are omitted. 2 "Charter party (charta partita; i. e., a deed of writing divided) is all one in the civil law with an indenture at the common law." Molloy, De Jure Maritimo, book II, c. 4, § 4. GREEN CARR.-1 * * ter party. Among other provisions thereof was one by which McKay agreed * that on the termination of the charter he would "deliver the said steam propeller to the Washburn Steamboat Company, or their legal representatives, in New York harbor, in the same good condition as she is now in, ordinary wear and tear excepted." * * The vessel was burned at sea in January, 1886. * * * * The remaining obligation of McKay under this charter party is contained in that provision by which he agreed, in the language already quoted, to deliver the vessel to the company in New York harbor. It has been claimed on the part of the plaintiff in the courts below, and it is now urged here, that this promise to deliver was on its face an absolute and unconditional one, and a failure to fulfill it would not be excused by the entire destruction of the vessel before breach, and without fault on the part of the charterer. It is true that the vessel was not destroyed at the time when by the terms of the original promise McKay had bound himself to deliver it in New York harbor. The question is whether the contract to deliver was absolute, and only to be complied with by an actual delivery within the time agreed upon, or whether a destruction of the thing hired, before breach, and without the fault of him who hired it, would not absolve the latter from his contract. If it would, there is the further question whether the facts herein do not show a waiver of the contract to deliver at the specified date, and an implied extension of the time for such delivery, and the destruction of the vessel within the time thus extended, without the fault of the hirer; or, at least, whether the facts proved were not enough to permit a finding of the fact of such waiver and extension. The case of Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142, is one of the leading cases of that class which must have controlled the judgment of the courts below in the case at bar. It was there reiterated, as a principle well founded in the law of contracts, that inevitable accident or any unforeseen contingency, not within the control of the party promising, was no defense to an action founded upon the express promise to do the thing and a failure of performance. An act of God, it was said, would excuse a party from performing a duty. created by law, but not where such party had unconditionally engaged by express contract to perform. It is argued that here is an express promise to deliver this vessel in the harbor of New York, and, as the promise was not fulfilled, the promisor is liable, and hence the liability of the defendant as his surety. We do not think that the law applicable to the class of cases of which that of Harmony v. Bingham, supra, is a conspicuous example, applies here. The contract in this case comes, as it seems to us, under another class, which relates to the hiring for use of the thing hired, and where an express contract is made to redeliver the article hired upon the determination of the term of hiring. Even in such cases of express contract, there is implied a condition of the continued existence of the thing which is the subject of the contract; and if it perish without any fault of the hirer, so that redelivery becomes impossible, the hirer is excused. If a horse be delivered to one under an express promise to redeliver when demanded, and the horse die before demand and without fault on the part of the bailee, he is excused. Williams v. Lloyd, W. Jones, 179; Sparrow v. Sowgate, Id. 29. Mr. S. Martin Leake, in his Digest of the Law of Contracts (at page 706), says: "The authorities establish the principle that where, from the nature of the contract, it appears that the parties must, from the beginning, have known that it could not be fulfilled, unless when the time for the fulfillment of the contract arrived, some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continued existence as the foundation of what was to be done, then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, the contract becomes impossible from the perishing of the thing without the default of the contractor." Several cases are referred to in support of this proposition. Among them are those in the note to Hall v. Wright, 96 E. C. L. 745, at side of page 747, El. Bl. & El. 746; Taylor v. Caldwell, 3 Best & S. 826, 113 E. C. L. 826. Blackburn, J., says, in last case, that the implication in an express contract of this nature, that the thing itself shall be in existence when the person is called upon to fulfill his contract, tends to further the great object of making the legal construction such. as to fulfill the intention of the parties to the contract; for in the course of affairs men in making such contracts in general would, if it were brought to their minds, say that there should be such a condition. See, also, Appleby v. Myers, L. R. 2 C. P. 651, per Blackburn, J., 658. There is no question that a party can, if he so please, bind himself to deliver notwithstanding the thing may perish which he contracts to deliver. He does not thus bind himself by the use of the ordinary language as contained in this charter party. The above cases show this to be true. When language like that found in this agreement is used, the condition of continued existence is implied, and as thus interpreted it. creates nothing more of an obligation than that which the law raises without any such promise. When language is used which does no more than express in terms the same obligation which the law raises from the facts of the transaction itself, the party using the language is no further bound than he would have been without it. So it was held in the case of Ames v. Belden, 17 Barb. 513, where the defendant was sued for its value for not returning a steamboat according to the condition of the charter party by which defendant agreed to return the same at the expiration of the term in as good condition |