Giles v. Crosby et al. Canal street into Walker street, and the widening of Walker street," did not create a condition within the common law rule upon that subject. 1. Such a condition is inapplicable to a contract for work and labor, operating to do injustice, and as a penalty. Penalties under contracts between parties are created only by clear and express words, never by implication. 2. To make it operate as a strict condition, is to make it operate unequally, as well as harshly; for though the defendants have all the street they contracted for, and the consequent benefit stipulated to be given to them, yet the plaintiff is to obtain no compensation, though he has performed all the services his contract called for. (Campbell v. Jones, 6 T. R., 570; Hall v. Cazenove, 4 East., 477; Constable v. Cloberlie, Palmer's R., 397; McAuley v. Billenger, 20 Johns., 89; Ritchie v. Atkinson, 10 East, 295; Kemble v. Wallis, 10 Wend., 374.) 3. To construe it as a covenant for work and labor, demanding only a substantial compliance by the performance of the services contemplated, is to carry into effect the intention of the parties, and to do justice to the plaintiff, while no injustice is done to the defendants, as they have received all the advantages to their property they contemplated. John Van Buren, for defendants, Insisted, that inasmuch as it was proved that material changes of the plan were made after the bond was given, without the consent of the defendants, the condition of the bond was never fulfilled, upon which alone the defendants chose to become liable on the bond. That the testimony offered, as to the effect of the change of the plan upon the expense of the improvement, was properly rejected. That the defendants were the sole and exclusive judges of what plan would benefit them, and for the completion of which they would pay. That judgment should be ordered for the defendants, according to the decision at the trial. BY THE COURT-HOFFMAN, J. The plaintiff offered no evidence under the second cause of action stated in his complaint, and it may be dismissed from our consideration. Giles v. Crosby et al. One express condition of the bond was, that before the obligors should be called upon to pay, satisfactory evidence should be given to them, that the sum of $10,000 was necessarily paid or incurred in order to carry out the plan; the manner of its expenditure or distribution shall also be exhibited to them. The complaint alleges that this satisfactory evidence was furnished, and this exhibition made before the commencement of the action. The answer of all the defendants except William Remsen, by not denying, may be taken to admit this. Remsen puts it in issue. No evidence touching the matter was given on the trial. It would seem to be entirely fatal to the plaintiff's case as against Remsen, that no such proof was given. It is very clear that this was a condition precedent to a recovery, and should have been proved as well as averred. The answer given to this objection was, that the point does not arise, and cannot be considered here, because the learned Judge had dismissed the complaint on one particular ground, a ground different from that in question. The course on the dismissal of the complaint is thus stated: "The counsel moved for a dismissal of the complaint on the ground that the condition of the bond was not fulfilled, because the plan in the hands of the Commissioners at the date of the bond was not carried out; the gore not being taken in and Canal street being continued to East Broadway." "His Honor the Judge granted the motion on the ground that the gore was not taken in, and Canal street was continued to East Broadway, which was not according to the plan of the Commissioners at the date of the bond." Assuming for the present case, that the Court may not enter upon any other ground which would have justified a dismissal, upon a bill of exceptions, but must limit its view to the question of error or no error in the precise point, we proceed to examine that point. It seems to us clear that the alteration in the plan, particularly by the omission to take the gore, one side of which was on Centre street, was a material alteration. It was a deviation from the plan originally resolved upon, and on the execution of which the defendants were to be bound for a sum of no slight character. No one could pretend to say, that it was so indifferent and unim Read et al. v. Spaulding. portant as that the conclusion would be irresistible, that the defendants, had it been so proposed originally, would have entered into the same contract. This appears to me to be the true question to be solved. If a jury had given a verdict for the plaintiff upon the question being left to them, whether the change was material in view of the condition of the bond, it would have been set aside. The case of Pullman v. Corning, (5 Seld., 93,) and the cases there cited contain the principle governing the present. A partial fulfillment of a contract, a deviation from a contract has been held in some leading cases to preclude a recovery where, undeniably, much injustice was done by the strict enforcement of the rule. We are left to conjecture as to the positive loss or injury sustained in the present case. That the plaintiff neither procured the alteration nor could have prevented it is no reply to the objections against his recovery. His undertaking implied the power to accomplish the work in the mode prescribed, or made payment to depend upon the success of his efforts. It would have been different had the defendants been accessory to the change. The judgment must be ordered for the defendants, with costs. Judgment for the defendants. TRAVERSE H. READ et al., Plaintiffs and Respondents, v. MORRELL B. SPAULDING, Defendant and Appellant. 1. A party doing business under the name and style of "Spaulding's Express Freight Line," and in that name receiving goods at New York "to be forwarded by Spaulding's Express to" Louisville, without liability for damage, "if delivered at Louisville depot in good order," without liability "for wrong delivery of goods marked by initials, or, " for wrong carriage of goods that are imperfectly marked," and in case of loss or damage for which Spaulding's Express may be liable, stipulating that the latter shall have the benefit of any insurance affected by the owner, is a carrier of goods and not a forwarder merely, notwithstanding he employs the conveyances of third parties only, (Railroad Companies, &c.,) in the performance of his contract. Read et al. v. Spaulding. 2. Where goods in a railroad depot near a river were injured by an extraordinary flood, rising higher than any flood had ever risen before, which it was no negligence not to anticipate, and from which, when the rise of the water became apparent, the goods could not be delivered, if the carrier in the due discharge of his duty had the goods in the regular and usual course of transportation so that their being in the depot at the time was proper, the injury is by the act of God in such sense that the carrier is excused. 3. But it is the duty of the carrier to carry and deliver within a reasonable time, and if, when the goods were in the depot and the flood came, he had violated his duty and was under the actual pressure of fault and neglect, without which the goods would have been safe, he is not excused. 4. A carrier is liable for injury to goods caused by inevitable accident, or what is termed the act of God, if by his culpable negligence or unexcused and unreasonable delay in the transportation, he unnecessarily exposes the goods to the peril. (Before WOODRUFF, PIERREPONT and MONCRIEF, J. J.) Heard, February 18th; decided, November 26th, 1859. THIS action was tried before BoswORTH, Ch. J., and a jury, on the 21st day of October, 1858, and was brought to argument pursuant to an order then made that the exceptions taken on the trial be heard in the first instance at the General Term. The action is brought against the defendant as the proprietor of, or person doing business under the name and style of "Spaulding's Express Freight Line" to recover for the injury and damage to certain goods of the plaintiff while in course of transportation from the city of New York to Louisville, Kentucky, owing, as alleged, to the negligence of the defendant and delay in the transportation. The answer alleged that the defendant was a forwarder only, and not a common carrier; it denied any negligence or unreasonable delay; and averred that whatever injury the goods sustained was caused by an extraordinary flood, and that all that human foresight and skill could do was done to avoid damage and guard against said flood. Without further particular statement of the pleadings it is enough to say that they were sufficient to raise the questions discussed and decided. On the trial numerous witnesses were examined, and the case prepared for the argument at the General Term, states that: "After the evidence was closed, the following facts were agreed upon by the counsel for the respective parties and taken down by the Court. It is admitted that the plaintiffs by their agents, Read et al. v. Spaulding. Flagg & Baldwin, of New York, delivered to the defendants at New York, 84 cases of the goods in question on the 27th day of January, 1857, and that all the goods, excepting five cases, which were damaged, arrived in Louisville in twelve or fourteen days from the time of their delivery in New York. "That all these goods were, when delivered to the defendant, the property of the plaintiffs, and they were partners, and that the goods were delivered to the defendant and received by him on the 27th day of January, 1857, at the city of New York, and were so delivered and received under a contract, of which the following is a copy: "SPAULDING'S EXPRESS FREIGHT LINE, "OFFICE IN NEW YORK, 267 BROADWAY. Mark packages 'Spaulding's Express,' and the route they are to go. And ship by Harlem Rail Road, Cor. White & Centre sts. NEW YORK, Jan. 28, 1857. Received from Flagg & Baldwin the fol CONTENTS OF PACKAGES lowing packages (contents and value un UNKNOWN. No risk taken over $200 on any single package. No liability will be assumed for wrong carriage or wrong delivery of goods that are marked with initials, numbers, or imperfectly marked. R. A. & Co., Louisville, Ky. Via Indianapolis. Subject to charges to New York. BILL OF LADING FROM NEW YORK TO 1st Class Goods 178 cts. per 100 lbs. 2d Class Goods.... cts. per 100 lbs. 3d Class Goods.... cts. per 100 lbs. 4th Class Goods.... cts. per 100 lbs. New Furniture, 14 first class rate.... cts. per 100 lbs. known) in apparent good order, viz.: eightysix cases straw goods, supposed to be marked and numbered as per margin, contents and value unknown, to be forwarded by Spaulding's Express, to the place named in the Bill of Lading, upon the following condition, to wit: that the owner or shipper hereby assumes the risk of loss or damage, by Lake or River Navigation, Fire, Leakage of all kinds of Liquids, breakage of all kinds of Glass and Glassware, or articles packed in Glass, Stoves and Stove Furniture, Castings, Machinery, Carriages, Furniture, Musical Instruments of all kinds, damage or loss of any article, the bulk of which renders it necessary to be shipped in open cars, and damage from unavoidable delays. All property shipped on this Bill of Lading will be subject to necessary cooperage, and will be delivered at the depots of the Company or Steamboat landing. It is also expressly agreed between the parties, that the said Spaulding's Express, shall not be held accountable for any damage or deficiency in packages of goods if delivered at Louisville depot in good order, and that no liability will be assumed for wrong delivery |