majority">Morse, J.

This was an action of replevin, commenced in the circuit court for the county of Alpena, to recover possession of a certain boiler and connections, and some 300 fire brick. The writ and declaration are in the ordinary form. The plea was the general issue, with notice that the defendant, as agent for the owners of the propeller Oconto, held possession of the boiler, etc., by virtue of a lien for freight for transporting the boiler from Port Huron to Alpena. The verdict was for plaintiffs for six cents damages. Judgment was entered on the verdict.

The plaintiffs claimed that late 'in the fall of 1883, they contracted with Capt. McGregor, master of the steamer Oconto, to take the property mentioned in the writ from the dock at Port Huron, and deliver the same at plaintiffs’ dock, in tlie city of Alpena, for the sum of $100 ; that the boiler* and other property were brought from Port Huron to Alpena by the Oconto, but,on its arrival, Capt.McGregor, as master of the vessel, demanded the payment of $150 as freight before unloading; and, on the refusal of plaintiffs to pay more than *59$100, he delivered the property at Davis’ dock, on the opposite side and further up the river. Plaintiffs then demanded the property of Davis, the defendant, and Davis refused to deliver the same without the payment of $159, — $150 for freight and $9 for dockage. Plaintiffs tendered the dockage charges, and, after such tender and Davis’ refusal, brought this action of replevin.

The defendant claimed that Capt. McGregor made no such contract, but that he told plaintiffs he would bring the boiler up if he came on another trip ; that he did not agree to carry it for any price, but told them he would not be unreasonable in his charges. The fact of his requiring $150, and refusing to deliver it at plaintiffs’ dock without the payment of that sum, is not disputed, nor that he unloaded it at Davis’ dock with instructions to Davis not to deliver'it unless the $150 was paid.

The first question, then, to be settled on the trial, was as to-the contract between' the parties, — the plaintiffs and Capt. McGregor. This was submitted in a special question to the jury, who found the contract to be as stated by the plaintiffs.

The court instructed the jury, among other things, as-follows:

“ If you find that the captain of the Oconto agreed with these plaintiffs that he would bring up the boiler in question to this port for the sum of $100; and if you find the further fact that after that steamer arrived at this port he refused to-deliver it to them for less than $150, then the plaintiffs would have been v entitled to retake the possession of the boiler from the defendant.”

And that if they found a demand was made upon the defendant, or his agent, the plaintiffs had a right to maintain their suit; and that if they found these facts, their verdict should be for the plaintiffs. .

It is urged that this portion of the charge was error, on the ground that the defendant, acting as agent for the captain of the Oconto, was entitled to a tender of the freight, for which there existed a lien upon the boiler, and no such tender was-made before bringing suit.

*60The evidence shows, without much variance, that while the Oconto was landed at the Davis dock, one of the plaintiffs saw Capt. McGregor, and asked him if he was going to land the boiler at their dock. The captain replied that if they paid the freight, he would. Plaintiffs told him they would give their check for $100 if he would land it there. The captain refused to do it for less than $150, and unloaded it at the Davis dock.

The question arises, therefore, under the plaintiffs’ proofs, the undisputed fact of the refusal to deliver at plaintiffs’ dock for less than $150, and the special finding of the jury that the contract was to deliver it at $100, if the plaintiffs were bound to make a formal tender, money in hand, of the $101) before they were entitled to the boiler. In other words, did the Oconto have any lien upon -the boiler for freight^ which must be released by payment or tender before the conditions of the contract of carriage had been fulfilled?

If the contract was as plaintiffs claimed, and the jury specially so found, then the captain of the Oconto did not perform his contract, and under all the authorities was not entitled to his lien. It was not sufficient that the boiler was brought into the port of Alpena. The contract called for the delivery of the boiler at the plaintiffs’ dock, and the conveyance to Alpena was not enough, without the delivery, or offer of delivery, at the place specified : Fitch & Gilbert v. Newberry, 1 Doug. 15; Abb. Shipp. § 406; Liddard v. Lopes, 10 East. 526 ; Tirrell v. Gage, 4 Allen, 245, 252; Aug. Carr. 5th Ed. § 400 ; Burrill v. Cleeman, 17 Johns. 72.

A partial performance is not sufficient, unless delivery be dispensed with or prevented by the owner: Palmer v. Lorillard, 16 Johns. 356.

This is not the case here. The plaintiffs averred their willingness to pay the sum fixed in the contract, if landed where it was agreed to be delivered; but the fault was in the master of the Oconto, who refused to perform his contract unless he was paid $50 additional. lie did not deny that the contract was to land the boiler at plaintiffs’ dock. *61Indeed, lie was ready to do so if lie could get his additional $50.

Under the special finding of the jury, which must govern, the defendant’s principal was clearly wrong, and no tender of freight was necessary. The dockage charges being paid or tendered, the plaintiffs were entitled to the boiler, and, upon the refusal of possession, could maintain replevin. There was therefore no error in this instruction.

The court also charged the jury, that if they found no such contract existed as claimed by plaintiffs, and that no price was agreed upon for the carriage of the boiler, then, if they found that the sum of $150 was an unreasonable compensation for the services of the Oconto, and the captain demanded that sum before the delivery of the property, the verdict should be for the plaintiffs after demand.

This is also assigned as error. As the jury found specially that there was a contract to carry and deliver the boiler for $100, the question as to the charge of $150 being reasonable or unreasonable was entirely out of the case, and the instruction complained of had no possible bearing upon the verdict, and therefore did the defendant no harm.

There being no error in the record, the judgment below is affirmed, with costs.

The other Justices concurred.

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