#### AMOS WADE v. DANIEL L. RUSELL.

When the shipper agreed to load a vessel “ in a reasonable time,” it teas held, that he was bound to pay for every unreasonable delay that occurred; and the fact of his residing at a distance from the shipping port, made no difference in the obligation created by the articles.

This was an action of debt, brought upon the following instrument. “ It is hereby agreed, between Amos Wade of the one part, and Daniel L. Russell of the other part, witnesseth that Amos Wade hereby agrees, that the Schooner Wade shall after she returns from New York, and makes another coasting voyage, return to Swansboro and take a load of turpentine, for the said Russell to New York, at fifty two and a.n half cents per barrel. And in case the said Wade may refuse to comply, he shall forfeit and pay to the said Russell, the sum of two hundred and fifty dollars: and it is further agreed, that in case the said Russell shall fail to load the said schooner Wade in a reasonable time after her arrival at Swansboro, at the above freight, he shall forfeit and pay to the said A. Wade the sum of two hundred and fifty dollars. Witness this our hands and seals, Newburn 12 February, 1833.

(Signed,) Daniel L. Russell, [l. s.]

Amos Wade. [l. s.]”

The breach assigned in the declaration, was the failure of the defendant to load the schooner Wade in a reasoma-ble time after her arrival at Swansboro. The defendant pleaded — general issue — covenants performed and not broken.

Upon the trial at Craven, on the last Circuit, before his Honor Judge Saunders, it appeared in proof, that the Schooner Wade, arrived in ballast at Swansdoroon Saturday the 16th of April 1833; that her ballast was thrown out on Tuesday following, and that on the next day, viz. on Wednesday, she hauled alongside the wharf,’and was ready on the evening of that day to take in her load; that on the same evening, or the next morning (Thursday) the *543defendant had notice that the schooner was ready to receive her load: that the defendant had no turpentine on the said Wednesday at Swansboro, and did not have the sime there till the following Saturday : that on Monday, they began to load the schooner, and the turpentine was received and the vessel loaded on the following Wednesday. That neither the plaintiff nor his captain made any objection to receiving the load, and that the defendant was willing to pay twelve dollars for the detention, which the captain said he was not authorised to receive. It was further in evidence that the defendant lived about ten miles from Swansboro, and that the plaintiff was aware of this, at the time he made the contract in question. — • His Honor instructed the .jury “ that the plaintiff was bound to show that he had his vessel at Swansboro, within a reasonable time after performing the trips mentioned in the contract, and had given the defendant notice of his readiness to take the load on board. So the defendant was bound to have the turpentine at the place in readiness to load the vessel after her arrival. If they were satisfied that the vessel was prepared to receive her load on Wednesday the 20th, and that the defendant was notified of that fact, on that day, or the next morning, they would give the plaintiff damages for each day’s detention after that time, until the day whem they began to load; and for every day afterwards, provided there was any unreasonable delay in loading after Monday, the time the turpentine was in readiness for delivery.” It having been proved that fifteen dollars was a reasonable demurrage per day, for vessels of the size of the Wade, thé jury found a verdict for sixty dollars damages in favour of the plaintiff. The defendant obtained a rule for a new trial, upon which being discharged, he appealed.

W. C. Stanly, for the defendant.

— The Judge was mistaken as to the meaning of the contract. The defendant was not bound by it to have the turpentine at the place of delivery, upon the vessel’s arrival there. He was only bound to load within a reasonable time. He lived ten miles from Swansboro, which was known to the plaintiff, at the time when the contract was made. The *544Judge ought to have submitted the whole to the jury, as to whether the vessel was loaded within a reasonable time, or whether there was any unnecessary delay. In some cases, the question of the reasonableness of time, is one of law, but where a variety of circumstances are taken into consideration, the whole must be left to the jury, to find what is reasonable time.

2nd. The cargo was received on board the vessel without any objection on the part of the plaintiff, or his captain, which was a waiver of the delay. Chitty’s Cont. 273, note n.

No counsel appeared for the plaintiff.

Ruffin, Chief Justice.

— It, is imputed as an error in the opinion of his Honor, that it absolutely requires the articles intended to be shipped to be at the shipping port before, or as soon as the vessel was ready to receive her cargo. It is said, the agreement contains no such clause; and that it could not be material to the plaintiff where the cargo was, provided it were put on board in a reasonable time.

It is true, there is not in the charter party a distinct provision, that the defendant should have the cargo at Swansboro at any particular time. Had the plaintiff declared on the deed as containing such a stipulation, either expressly or according to its legal effect, as a substantive stipulation, there would have been force in the objection. But that is not the case. The gravamen of the complaint is not, that the cargo was not at the place upon the arrival of the vessel, but that no part of it was put on board for four days thereafter, and that the vessel was thereby unnecessarily and unreasonably detained for that period. That is the breach assigned in the declaration. Upon the case thus stated, the alleged error appears to us to be a mere verbal criticism upon the language of the Judge, as laying down a general proposition, instead of regarding it in connection with the point actually in controversy between the parties.

Had the turpentine been on the wharf at which the *545vessel was lying, and the merchant refused or neglected to deliver it, no one would say that the owner ought not to have compensation for the detention. The defendant in this case, is no less the anthor of the delay than if he had wilfully withheld the cargo; and the loss to the plaintiff is the same in both cases. , So likewise, is consequently the injury, unless the stipulations of the parties allowed to the defendant, a longer time to load, in the case which has happened, than he would have generally. The contract is silent as to any particular number of. days to be allowed for loading, or during which the vessel might be detained upon demurrage. It is in general terms, that the defendant shall furnish a cargo at Swansboro, and load the vessel, in a reasonable time after her arrival. There is nothing, therefore,’ in the instrument to exonerate the defendant from the ordinary liabilities of a merchant, contracting to ship on freight, at a particular port; which, necessarily, includes a delivery at that place, and at the time agreed on. But it is obvious, from the evidence offered by the defendant, that on. the trial he insisted, that although the delay might be deemed unreasonable if he had lived in Swansboro, and had his turpentine on the beach, yet it was excused in him, because he resided ten miles off, and could not sooner1 bring the articles to the vessel, after notice of her readiness. It was in reference to this pretension, that the Judge laid it down that the defendant was bound to have the cargo at the place in readiness to load the vessel at her arrival; not as we understand him, that the plaintiff could recover merely because the cargo was not at the place, but that a delay in loading was not justified by the circumstance that the cargo was not at the port, but at the defendant's residence, and that, to save himself from damages for the detention, the defendant ought to have had the cargo at Swansboro, instead of at his own house. In that opinion this Court concurs. If the defendant was not confident of providing the cargo* by the arrival of the vessel, he should have protected himself by a reservation of so many day’s detention. The excuse that he could not buy the cargo at all, would be as satisfactory as that he could not have it at the place in *546^ue season.. Nor will it do for him to say, that he used diligence to get it there after the vessel arrived.. By t'ie agreement> the vessel is to wait for nothing, after her arrival, but to be loaded. It is presupposed that the cargo is in readiness ; and that she will be detained no longer than is necessary to put it on board. In this sense, therefore, we think it correct to say, that the shipper was bound to have the cargo there or pay damages for its detention. To the plaintiff it is the same, whether the defendant would not, or could not, load the ship in a reasonable time after her arrival.

It is not material to consider whether the jury or the Court must ordinarily determine the question of reasonable time. A case proper for the jury, perhaps, might have been made upon evidence as to the size of the vessel, and cargo, the assistance to be had at the port, and the usual time occupied in loading at that place, if the dispute had been, whether the shipment begun in due time,. had been completed in due time. But this verdict confines the damages to the period during which the vessel and crew were kept entirely idle. For that delay, the plaintiff is entitled, in law, to recover. A delay in beginning to load for four entire days must be unreásonable.

Per Curiam. Judgment affirmed.