¶1This case is put by the plaintiffs upon the grounds upon which damages are given on a contract to ship goods to a given port, when, through the default of the shipper, the goods, although the voyage is commenced, do not reach the port of discharge. In such cases, as appears well established by the cases cited by the counsel for the plaintiffs, the entire freight is earned, and must be paid by the shipper. The next inquiry is whether the case at bar is of like character ? It was urged in the argument, that placing the goods on board ship preparatory to sailing was equivalent to the actual commencement of the voyage in its consequences as to the right of the carrier to recover full freight. We find no authority for that position. Indeed the rule as to what constitutes the commencement of a voyage, in reference to liability for freight, is well settled otherwise. That rule is, that the voyage commences upon breaking ground for the voyage, and not before. Curling v. Long, 1 Bos. & Pul. 636. Burgess v. Gun, 3 Har. & Johns. 225. Smith’s Merc. Law, (Amer. ed.) 308. No freight is due before the commencement of the voyage, and no lien exists therefor.
¶2*95The case of the plaintiffs is not therefore one of a voyage commenced, and a subsequent prevention of the carriage of the goods to the port of delivery through the default of the shipper. It is a case of an executory contract to ship goods, which the shipper refuses to fulfil on his part. The defendants agreed to ship on board the plaintiffs’ vessel seventy five thousand feet of lumber for California, and to pay the plaintiffs a stipulated sum for the same. The plaintiffs aver that they were ready to perform their contract, but were prevented by the acts of the defendants. Assuming this to be so, the further inquiry is, what is the rule of damages in such case ?
¶3The measure of damages is full indemnity for all they have lost through the default of the shippers. The mode of ascertaining the amount of damages for a breach of an executory agreement must of course differ in different classes of cases. If it were a contract to employ the plaintiffs to build a house, and pay them an agreed price for the entire work, and the defendants had prevented the performance, the proper rule would seem to be the difference between the sum agreed to be paid, and the sum that it would have cost the plaintiffs to perform the contract. That rule does not meet the cases of contracts for freight, as they are generally made. It does not meet the case of a vessel engaged in carrying merchandise generally for all who may apply, and making up her cargo from various owners of goods. Such ship usually must sail on or about a given day, to fulfil her other contracts, thus leaving no time or opportunity to fill up the deficient cargo, and also necessarily incurring all the expenses that would have been incident to the voyage, had the shipper fulfilled his particular contract to furnish a certain amount of goods for the voyage.
¶4On the other hand, if the shipper’s contract were to fill the entire ship with his goods at a certain freight, upon his refusal or neglect to fulfil his contract, the carrier might abandon the whole voyage, and engage in some new adventure equally or more profitable, and thus all future expenses incident to the first voyage be saved. Here it is quite obvious the damages would be much less than in the case of a voyage that must be per*96formed notwithstanding the failure of a single individual customer to ship his goods according to his contract.
¶5So, too, if under no obligation to other shippers to sail at a given day, or if that day was so remote, and the demand for transportation of goods such as to afford full opportunity to fill up the ship before the day of sailing, these circumstances would materially affect the amount required to be paid by the shipper to the carrier, to indemnify him for the non-performance of the contract on his part.
¶6It seems therefore proper that all the attendant circumstances be brought before the jury in each particular case, to enable them to estimate the proper sum to be awarded as damages for a breach of contract of this nature. The carrier is to receive full indemnity for the breach of contract on the part of the shipper. He is to be made as good, in a pecuniary point of view, as if the shipper had furnished the goods according to his contract, if the earner has been guilty of no loches as to substituting other freight, or adopting other available arrangements to mitigate the loss, or avoid the expenditure incident to the proposed voyage. But if by proper and reasonable efforts he can substitute other goods, he is bound to do so, and, to the extent of the freight thus received, this should go in reduction of the damages. Nor is the reduction necessarily confined to his receipts from goods actually substituted. The carrier may have been remiss in his attempts to fill up his ship, or have neglected to avail himself of opportunities presented by other offers of goods, and if guilty of negligence in these respects, this may be a ground for a deduction from the entire sum stipulated to be paid by a shipper for freight of certain articles, which were not furnished to the carrier.
¶7It may be also that the carrier was under no obligation to others to prosecute the proposed voyage, and might have abandoned it for another and more profitable employment of his ship; and in such case he should not pursue the original voyage for the mere purpose of charging the defaulting shipper with the gross sum he stipulated to pay for transporting his goods to a distant port.
¶8It will be perceived, therefore, that a somewhat broader lin *97of defence should have been permitted to the defendants, than that prescribed at the trial. It is true that the plaintiffs are entitled to the full benefit of their contract, and to the entire damage they have sustained through the default of the defendants. But the sum the shippers stipulated to pay for freight is subject to be reduced by money actually received for substituted freight, and also by the amount which the carrier might have made, had he availed himself of all proper opportunities to fill up the vacancy and to mitigate the loss that would attach to the shipper by the.payment of the entire sum stipulated to be paid for freight.
¶9See, on this subject, Heckscher v. McCrea, 24 Wend. 304 Shannon v. Comstock, 21 Wend. 457; Costigan v. Mohawk & Hudson River Railroad, 2 Denio, 610; Abbott on Shipping, 411; Sedgw. Damages, 361. New trial ordered.
¶10A new trial was had at this term, and resulted in a verdict of $3,052.99 for the plaintiffs.