majority">By the Court, E. Darwin Smith, J.

There being in this case no exceptions to the charge of the judge at the circuit, except in relation to the question of damages, it must be assumed that the charge was unexceptionable upon the merits, and the questions of facts arising upon the evidence, under the pleadings, were in due form properly submitted to the jury. The breach of the defendant’s contract, as alleged in the complaint, consisted in his neglect and refusal to employ the boat in question in transporting for the plaintiff, and in abandoning the said boat after using the same during the greater portion of the season of navigation, whereby the plaintiff was obliged to receive the same injured and deteriorated in value. In finding for the plaintiff, the jury have affirmed, in effect, that the defendant was guilty of the breach of contract alleged, in manner and form as claimed in the complaint. In the absence of any precise statement of the charge upon questions of fact submitted to the jury, it must be assumed that such was the issue duly and fairly submitted to them.

It appears that the canal boat in question made four trips in the season of 1856, and that the last trip was in the month of August, and the $40 mentioned in the contract was duly paid to the plaintiff on or out of the freight of each trip. There was, therefore, no breach of contract or refusal of the defendant to perform the same on bis part, till after these trips were completed. From the evidence, the jury would have been warranted in finding, and must have found, that the defendant abandoned the boat and the employment of the plaintiff about the 1st of September, 1856, and that the plain*464tiff, by reason of such abandonment, resumed the possession of the same about the 1st or early in the month of October afterwards. The contract was then put an end to by the voluntary abandonment of the boat and the use of the same in the service of the plaintiff, by the defendant, early in the fall of 1856. From the time the plaintiff thus resumed the possession of the, boat, he must be deemed under this verdict to have asserted his rights of property in it as owner, and the contract should be deemed at an end, except so far as it affects or controls the rights of the parties in respect to the question of damages.

Treating the contract as thus broken and put an end to by the voluntary abandonment by the defendant of the plaintiff’s employment, and of the use of the boat in his service, on or about the 1st of September, the plaintiff was entitled to recover such damages as resulted from such violation or breach of the contract. Assuming the value of the boat and horses to have been the contract price when the defendant received them, which he could not deny, the plaintiff’s damages would be the difference or deterioration in value of the boat between the time when the defendant took possession and the time when the plaintiff resumed the possession thereof, the value of the horses retained by the defendant, and any other loss or injury sustained by the plaintiff from the neglect or refusal of the defendant to carry his freights in the season of 1856, with interest thereon, deducting therefrom the amount paid by the defendant towards the purchase money for the boat and horses.

The judge in his charge advised the jury that the plaintiff was entitled to recover the $800, the price fixed in the contract, on the sale of the boat and horses,.and interest from date, less the sum of $550, for which the plaintiff sold the boat, the same to be applied as of the time of such sale, and less also the four payments of $40 each made on the contract. The charge treats the plaintiff as a trustee of the boat. He was not such a trustee. He has never parted with the. title. *465He was selling his own boat, as he lawfully might. If the boat had deteriorated in value while in the defendant’s possession, the plaintiff was entitled to throw such loss upon him. and recover the difference in value; but he obviously could not by his own voluntary act, without notice to the defendant, and without his knowledge, by a private sale of the boat, fix the measure of his damages. This would open the door to great injustice in such cases. If the plaintiff were to be regarded as a mortgagee or pledgee in possession, having merely a lien on the boat for his debt—the balance due on the purchase—he could not then sell at private sale without notice to the defendant, and bind him by the price. (2 Kent, 82, 83. 2 Story, 1008.)

[Cayuga General Term,June 6, 1859.

T. R. Strong, Johnson and Smith, Justices.]

But if the plaintiff is to be regarded as a vendor in possession, and entitled to sell the boat and charge the vendee with the difference between the contract price and that realized at the sale, he should still not have sold without notice to the defendant. (Sands v. Taylor, 5 John. 395. Bement v. Smith, 15 Wend. 493.)

I think the exception to the charge on this point well taken, and that the judgment should be reversed, and a new trial granted.

Hew trial granted.

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