against him is his failure to execute the note: O'Connor v. Dingley, 26 Cal. 11.

19. Variation of Terms.—If there has been any variation from the terms of the written contract in the progress of the work, by consent of the parties, that fact should also be averred, and the performance of the contract as varied; O'Connor v. Dingley, 26 Cal. 11.

No. 251.

ii. Against a Builder, for Defective Workmanship.

[TITLE.]

The plaintiff complains, and alleges:

the

I. That on the....day of........, 187., at.... plaintiff and defendant intered into an agreement, of which a copy is hereto annexed [or state the terms of the contract].

II. That the plaintiff duly performed all the conditions of the said agreement on his part.

III. That the defendant built [the bridge] referred to, in a bad and unworkmanlike manner [specifying wherein the work was not properly done], to the damage of the plaintiff dollars.

[Demand of Judgment.]

No. 252.

iii. Against a Builder, for not Completing, with Special Damage for

[TITLE.]

Loss of Rent.

The plaintiff complains, and alleges:

187., at

........

I. That on the .... day of ..... the plaintiff and the defendant entered into an agreement, under their hands and seals, of which a copy is annexed as a part of this complaint, marked "Exhibit A."

II. That the plaintiff duly performed all the conditions thereof on his part.

III. That the defendant entered upon the performance of the work under said contract, but has neglected to finish the said contract [state what he has neglected], and that although the time for the completion of said building expired before the commencement of this action, he neglects and refuses to complete the same.

IV. That the plaintiff, on the....day of... . . . . ., 187., at........, made an agreement with one A. B., whereby he agreed to let, and said A. B. agreed to hire, the said build

ing for.

months, from the....day of....

187., to the....day of...... 187., at the monthly rent of .dollars, of which the defendant had notice.

V. That by reason of the defendant's failure to complete the contract aforesaid on his part, the plaintiff has been unable to give said A. B. occupancy thereof, and has been thereby deprived of the profits of said lease, to his damage.... dollars, gold coin.

[Demand of Judgment.]

[Annex Agreement, marked "Exhibit A."]

20. Change in Form of Structure.-Where the contract gives the employer the right to change the form and the material, the builder has not the right upon such a change to stop the work in an unfinished state, and thus arbitrarily annul the contract: Clark v. Mayor of New York, 4 N. Y. 338.

21. Covenant with Penalty.-A covenant in a contract to erect and complete a building by a certain day, under a penalty of $30 for every day the same should remain unfinished, is not an absolute covenant to finish it on that day: Farnham v. Ross, 2 Hall. 167.

22. Damages by Recoupment. Where the plaintiff fails to perform by the day fixed, the defendant's consenting to his going on and completing the contract afterwards is no waiver of the right to recoup his damages for the delay: Barber v. Rose, 5 Hill, 76.

23. Destruction by Fire.-One who has agreed to build a house on the land of another, and has substantially performed his contract, but has not completely finished the house, nor delivered it, when it is destroyed by fire, is liable in an action for money advanced upon the contract, and damages for its non-performance: 11 N. Y. 35; 1 Taunt. 218; 7 Johns. 473; 19 Pick. 275; 12 N. Y. 99; 25 Conn. 530; 3 Dutch. 514; Tompkins v. Dudley, 25 N. Y. 272.

24. Excusable Delay.-If the delay on the part of the contractor to perform the work is caused by want of readiness in the work performed by another contractor under an independent contract, he cannot be held liable for a breach of his contract, nor forfeit his right to recover for what he has done: Stewart v. Keteltas, 9 Bosw. 261.

25. Furnishing Materials.-A written contract to furnish articles for a building, mentioning no time for performance, is to be performed in a reasonable time, and oral evidence that a certain time was agreed on by the parties is not admissible: Strange v. Wilson, 17 Mich. 342.

26. Plan and Specifications. If a contract to do work provides that the work shall be done according to certain specifications, which are annexed to it, the specifications are a part of the contract: Taylor v. Palmer, 31 Cal. 241. If the contract is not annexed and made part of the complaint, the allegation should embody sufficient of the plan and specifications to show, in connection with the averment of the breach, in what particular the contract was broken: Cooney v. Winants, 19 Wend. 504. An averment may be made sufficiently certain by introducing and referring to diagrams showing form and dimensions, etc.: Booker v. Ray, 17 Ind. 522.

27. Refusal to Perform.-The unqualified refusal of a contractor, for

a part of the work on a building in actual progress of erection, is in itself a breach of the contract: Thompson v. Laing, 8 Bosw. 482.

28. Substitution of Work.-A building contract contained a provision that the owner, on fifteen days notice, might employ another to finish it, and pay therefor out of any money due the contractor: Held, that by failing to complete, the contractor forfeited only so much as the owner was obliged to pay to finish the building: Foley v. Gough, 4 E. D. Smith, 724.

CHAPTER II.

ON CHARTER PARTIES.

No. 253.

i. Owner against Freighter, for not Loading. [TITLE.]

187., at.

The plaintiff complains, and alleges: I. That on the......day of...... the plaintiff and defendant entered into an agreement, a copy of which is hereto annexed.

........

at......

[Or, I. That on the......day of. . . . . . ., 187., at.. the plaintiff and defendant agreed by charter party, that the defendant should deliver to the plaintiff's ship "Flying Scud," at.... on the.......day of... ... ., 187., 187., four hundred and fifty tons of wheat, which she should carry to London, England, and there deliver, on payment of four thousand dollars freight; and that the defendant should have ten days for loading, five days for discharge, and three days for demurrage, if required, at fifty dollars per day.]

II. That at the time fixed by the said agreement, the plaintiff was ready and willing, and offered to receive the said merchandise [or the merchandise mentioned in the said agreement], from the defendant.

III. That the period allowed for loading and demurrage has elapsed, but the defendant has not delivered the said merchandise to the said vessel.

Wherefore the plaintiff demands judgment for..... dollars for demurrage, and........dollars additional for damages.

1. Charter Party Defined.--A charter party is a contract, by which the owner lets his vessel to another, for freight: Spring v. Gray, 6 Pet. 151, 164

Any contract founded on an illegal voyage partakes of the character of that voyage, and stands or falls with it: Colquhoun v. N. Y. Fireman's Ins. Co., 15 Johns. 352.

2. Damages. The measure of damages against a charterer who refuses to furnish a cargo according to his contract, is the stipulated price, deducting the net earnings of the vessel during the time she has been occupied on the voyage, at an average passage, and including the lay days: Ashburner v. Balchen, 7 N. Y. 262. If the freighter only partially fulfills his contract, the owner may recover for the dead freight his contract price; but the owner is bound to take other freight if offered, though at a less price, and can recover only the difference in price: Abb. on Shipping, 428; Heckscher v. McCrea, 24 Wend. 304.

3. Demurrage, Allegation for.-That the defendant detained the ship ...days beyond the periods so agreed on for loading, discharging, demurrage, as aforesaid, whereby the plaintiff, during all that time, was deprived of the use of the ship, and incurred...... dollars expense in keeping the same and maintaining the crew thereof.

4. Demurrage, Damages for.-Although demurrage, properly so called, is only payable when it has been stipulated, yet if a vessel is improperly detained, the owner may have a special action for the damage: Abb. on Shipping, 304; Clendaniel v. Tuckerman, 17 Barb. 184.

5. Demurrage, Liability for.-It is the duty of the charterer to restore the ship at the end of the period allowed for the demurrage, but they are not responsible for an unreasonable delay by the master: Robbins v. Codman, 4 E. D. Smith, 315. One who purchases goods arriving in bond, is not liable for demurrage of the vessel, for detention occurring before the seller obtains a legal permit for the delivery: Gillespie v. Durand, 3 E. D. Smith, 531. No demurrage can be recovered by an owner for a detention occasioned either by the misconduct of the master, for which the owner alone was answerable, or to avoid danger, and not by any misconduct or any breach of covenant by the charterer: Hooe v. Groverman, 1 Cranch, 214.

6. Distinction between Contracts of Hiring and Affreightment. -An agreement to hire a vessel in any legal trade, for a specified period, with covenants for her seaworthiness, and that the hirer should pay by the time, and not by the carrying of goods on the voyage, is a hiring of the vessel, and not a contract of freight: Winter v. Simonton, 3 Cranch C. Ct. 104; see, also, Donahoe v. Kettell, 1 Cliff. 135; Husten v. Richards, 44 Me. 182.

7. Duties of Master.-Where a charter party allows a charterer a number of "lay days," and neither the consignees nor other persons receive the cargo or pay the freight after arrival at the port of destination, the master acting as sole agent on behalf of both charterer and owner, is bound to sell the cargo and pay the freight, on the expiration of the lay days, but he is not bound to sell before the expiration of the lay days: Robbins v. Codman, 4 E. D. Smith, 315.

8. Interpretation of Contract.-In the construction of charter parties, it must be remembered that they are often informal, and must have a liberal construction, in furtherance of the real intention of the parties and the usage of the trade: Abb. on Shipping (Story's ed.) 188; 3 Kent's Com. 201, et seq.; 1 Paine, 358; 1 Sumn. 551; 2 Id. 589; 8 Wheat. 605, 634; Raymond v. Tyson, 17 How. U. S. 53.) And though the owner of a ship, of which the charterer is

freighter only, has a lien upon the cargo for freight, and also for a sum agreed to be paid for the use and hire of the ship, his lien may be considered as waived, without express words to that effect, if there are stipulations in the charter party inconsistent with the exercise of the lien, or when it can fairly be inferred that the owner meant to trust to the personal responsibility of the charterer: Paine, 363; 18 Johns. 157, 162; Abb. on Shipping, 178; 4 Bing. 729; 16 Ves. 275; 5 Maule & S. 180; 4 Barn. & Ald. 52; Raymond v. Tyson, 17 How. U. S. 53. As to the construction of charter parties in peculiar cases, see Ogden v. Parsons, 37 Hunt's Merchants' Mag. (Dec. 1857) 710; Belmont v. Tyson, 36 Id. (Feb. 1857) 202; Freeman v. A Cargo of Salt, 40 Id. (Apr. 1859) 457.

9. Mode of Stowage.-Where no mode of stowage is prescribed in the charter party, the usage of trade will obtain, and the owner will not be liable for damages resulting therefrom: Lamb v. Parkman, Sprague, 343.

10. Lay Days.-Under a charter party, the lay days of a vessel, by the general rule, commence to run from the time the vessel enters the dock: 1 Pars. Mar. L. 262; Rowe v. Smith, 10 Bosw. 268. Where the delivery, by the terms of the charter party, was to be made "alongside of the plaintiff's vessel, within reach of her tackles:" Held, that if the master was directed to take the vessel to a certain dock, and did so, the lay days commenced to run from the day she was taken there, and was in readiness alongside the dock to receive her cargo. A charter party provided for "lay days" as follows: to load twenty days from the twelfth instant, the owner guarantying to have the vessel ready by that time; and by a subsequent stipulation the charter party was to commence when the vessel was to receive cargo, and notice thereof should be given to the charterer. The readiness of the vessel at the day named was a condition precedent to the charterer's liability to accept and employ her, and the charter party commences on notice that vessel is ready to receive the cargo: Weisser v. Maitland, 3 Sandf. 318; Where no "lay days" are provided in the charter party or bill of lading, and there is no express stipulation as to the time of unloading, the consignee is not liable for delays occurring without his fault: The Glover, 1 Brown Adm. 166.

11. Liability of Charterer.-Where, by the terms of the charter party, the charterer was to return the boats "in as good condition as they now are, with the exception of the ordinary use and wear," he is not liable as an insurer against the perils of the sea or risks of navigation: Story on Bailm. sec. 35; Brown's Leg. Max. 187; Ames v. Belden, 17 Barb. 514.

12. Negligence-Liability for.-If persons charter a steamboat generally, they are owners, in respect to liability for negligence in running her. If the contract is one of affreightment merely, they are not such owners: Sherman v. Fream, 30 Barb. 478.

13. Owner for Voyage.—If, by the terms of the charter party, the charterers are to have exclusive possession, control, and management of the vessel, appoint master, run the vessel, and receive the entire profits, they are the owners, and are alone responsible for damages and contracts: 8 Wheat. 632; 8 Cranch, 39; Abb. on S. (Eng. ed.) 57, note 1; Id. 288-9; 1 Sumn. 566-7; 2 Gall. 75; Hill v. The Golden Gate, 1 Newb. 308; Winter v. Simonton, 3 Cranch C. Ct. 104. A charter party examined, and held not to have had the effect of transferring the ownership and possession from the general owers: Clarkson v. Eles, 4 Cow. 470; Mactaggart v. Henry, 3 E. D.