DANFORTH, J.

The action was brought to recover freight agreed to be paid by defendants to plaintiff for transporting on the deck of his canal boat 200 barrels of beans, from Albion and Brockport to the city of New York. The complaint alleges that the beans were transported under this agreement, and delivered to the defendants, who accepted them. That the freight has not been paid, "wherefore the plaintiff demands judgment against the defendants for $110, with interest." The defendants admit an agreement to pay freight, but allege that the plaintiff's undertaking was to "carry and deliver the beans in such manner that they would be entirely protected from moisture;" that he did carry them to the place agreed upon, but in such a careless and negligent manner they were wet, sprouted, greatly damaged, and a loss was by reason thereof sustained by them (respondents), to the amount of $1,008.94, "no part of which has been paid by the plaintiff, nor have the defendants paid the freight aforesaid, amounting to $110, and the defendants demand judgment for this sum of $1,008.94, and interest, less $110, and interest."

To this new matter the plaintiff interposed a reply, and thereby controverted and denied "all the allegations thereof." There was then, at the outset of this litigation, an understanding on both sides of the matters really in controversy, and the issues made by these pleadings were fully litigated. It was the theory of the defendants, as indicated by the answer above set out, and especially by their prayer for judgment, that the plaintiff was entitled to have allowed to him the freight agreed upon, and they should have allowed their damages; but judgment be given only for so much thereof as should remain after canceling the freight agreed upon. It was in pursuance of the same theory that the legal adviser of the defendants, at the close of the trial, submitted to the referee in writing a series of propositions of fact which he deemed established, and conclusions of law which he supposed would follow, with the request to find the facts and law as they were stated, "and each and every of the same, and each and every part thereof." The proposed conclusions of law were stated in these words: " First. That the plaintiff is entitled to recover of the defendants, $159.77. Second. The defendants are entitled to recover damages of the plaintiff in the sum of $1,452.10. Third. The defendants are entitled to judgment against the plaintiff in a balance of $992.33, and their costs." Thus reproducing, in separate clauses, the idea already embodied in a single sentence of the answer, for the sums named are the items there referred to with interest added. The referee seems to have had the same understanding of the case, for by his report he finds: First. That the plaintiff is entitled to recover the amount agreed to be paid as freight on the beans, and, stating the amount, directs judgment to be entered therefor, in favor of the plaintiff. Second. That the defendants are not entitled to recover, or to be allowed in this action as against the plaintiff for the damage and injury to their property before mentioned. And answering the requests of the defendants before stated, found the first, but refused to find the second and third. The defendants excepted to the conclusions of law contained in the report, and to the referee's refusal to find the second and third requests. Upon appeal the General Term held that the finding of the referee, upon the first clause, in accordance with the request of the defendants, and the omission of the latter to except thereto, entitled the plaintiff to maintain the judgment, and to that effect is the respondent's argument before us. We think it is unsound. The three propositions submitted to the referee should be taken together, and construed as one sentence, with several members. Such, evidently, was the intention of the draftsman. The first and second specifications were but premises upon which the conclusion stated in the third paragraph rested. Taken as a whole, the request was for a finding that the defendants have judgment upon the adjustment of the two claims stated in the first and second paragraphs. In substance that the freight be allowed to the plaintiffs, the damages allowed to the defendants, and judgment ordered for the difference. The defendants did not ask that the plaintiff have judgment, but that he be deemed "entitled to recover of the defendants" the sum named; the defendants "entitled to recover damages of the plaintiff, and have judgment for the balance." Put these requests in one sentence, and there could be no misapprehension in regard to its meaning. It seems to us equally plain as stated by the defendants. And so the referee must have thought, for in his report he uses the words as synonymous, and finds that the defendants are not entitled "to recover or to be allowed" as against the plaintiff, the damages. Upon exceptions to the refusals to find, and exceptions to the conclusions of law stated in the report, the defendants should have been permitted to review the correctness of those findings. But in any view of the case undue effect was given by the learned judges of the Supreme Court to the admission implied in the request to find that the plaintiff was entitled to his freight. There are cases in which two claims could not co-exist; where if the plaintiff was entitled to have his claim allowed, the defendants would be precluded from recovering, and among them are Davis v. Tallcot (2 Kern. 184), Bellinger v. Craigue (31 Barb. 534), Gates v. Preston ( 41 N.Y. 113), Blair v. Bartlett ( 75 N.Y. 150, cited by the learned court). They went upon the ground that the plaintiff's cause of action could be made out only by overcoming the defendants' claim, that if the latter was well founded it would defeat the former, and a recovery by either would be a conclusive answer to any demand made by the other, because the litigation provoked by either, would necessarily involve the matter upon which both must rely, and it could not be again litigated. Thus a recovery by a physician or surgeon of his fees for services rendered ( Bellinger v. Craigue, Gates v. Preston, Blair v. Bartlett), or by a manufacturer for the price of the machine ( Davis v. Tallcot), would bar an action by the patient in the first case, or the purchaser in the second, for damages by reason of non-performance of the contract upon which the fee or price depended, because, except upon proof, or admission of performance, the plaintiff could not have recovered. And if in the case before us the defendants had set up a claim for non-delivery or transportation of the goods, a recovery, or an admission of the plaintiff's right to recover for freight earned under the contract, would have justified the same conclusion. But that is not the case. The plaintiff did perform the contract to carry, and the goods reached their destination. He had thus performed the condition on which his right to freight depended, and he might have retained the property until payment was made, or waiving that right, deliver it, and look to the consignee or to the shipper for its payment. To the owner of the injured goods, several ways were open. He might pay the freight and sue for damages, or refusing to pay, submit to suit, set up his damages by way of counter-claim, or bring a cross-action. ( Gillespie v. Torrance, 25 N.Y. 309; Spalding v. Vandercook, 2 Wend. 432; Batterman v. Pierce, 3 Hill, 171; Dunham v. Bower, 77 N.Y. 80.) And a payment of freight, or a submission to judgment therefor, would afford the carrier no answer to the counter-claim or to the action. (1 Parsons' Maritime Law, 215; 3 Kent, 225; Griswold v. The New York Ins. Co., 3 Johns. 321.) The distinction between the facts of this case and the cases first referred to is in like manner indicated in Dunham v. Bower ( supra). Since the Code, the defendants may have affirmative and complete relief by first extinguishing the plaintiff's cause of action, and judgment for the excess. It was to that end that the answer of the defendants was framed, and to complete their purpose the requests referred to made. We think the exceptions were sufficient to entitle them to review the decision of the referee.

In the second place, the referee erred in his conclusion that the defendants were not entitled to recover damages against the plaintiff. The plaintiff was a carrier. He undertook with the defendants to transport their beans upon the deck of his canal boat to New York, for a price named, "to be paid on the delivery of the beans in that city." The referee finds that he undertook at the same time to furnish lumber sufficient to cover and shelter the beans while on the boat, so they would be perfectly protected from rain and moisture; that they were delivered to him in good order, part at Albion and part at Brockport; that his agent, the captain, received and loaded them upon the deck; that he was warned it was about to rain, requested to procure lumber, and informed that if it did rain, and the beans were not covered, they would be damaged; that he refused to cover them, and left each port "without the means to do so, or so arranging the barrels that they could be covered, and while the defendants' agent was absent." He was more than once requested to procure lumber and cover the beans, and repeatedly promised to do so, but did not. The boat left Brockport at night, or very early in the morning, without any covering whatever over any of the barrels of beans, without notice to the defendants and without their knowledge. At various times between Albion and New York it rained, and, "because of there being at first no covering over the beans, and because of the defective condition and insufficiency of the covering afterward constructed by the captain, the beans became wet, and when they arrived in New York city a portion thereof, by reason of such wetting, had become soft, and sprouted, and seriously damaged, and the whole of said beans were, in consequence thereof, in an unmerchantable condition;" that the consignees refused to receive the beans by reason of their ill condition, and then the captain had them stored "for account and risk of the boat and owners thereof." Thereafter, at the joint request of the plaintiff and defendants, the consignees took and cared for the beans, and at like request sold the same as they best could, and paid over the net avails to the defendants. The referee further finds the depreciation and injury, and expenses to be over $800. These findings were made at the defendants' request; they verify the counter-claim, and are in themselves sufficient to establish error in the referee's refusal to find that the defendants were entitled to recover for damages so sustained, less freight, and to judgment for the balance against the plaintiff.

In the referee's report there are findings of less fullness and somewhat conflicting with those referred to, but where they vary the defendants are entitled to those most favorable to themselves, and may rely upon them in aid of their exceptions. Moreover, the findings I have above stated are contained in the case as settled by the referee, and if they differ from those in the report, must still be held to be correct and represent his final conclusions. It is upon the case that the exceptions stand. (New Code, § 997; Tompkins v. Lee, 59 N.Y. 662.) It is argued by the respondent that the carrier is not liable for deck freight, and the shipper assumes the risk of loss or injury to his goods, when he consents that they be so carried. The authorities to which we are referred do not sustain the position. In case of jettison, the deck load cannot claim from the insurers, and there may be other modifications to the remedy of the owners of such a cargo, as between themselves and other shippers. But there was no jettison in this case and it has not yet been held that summer showers, however frequent, constitute a marine disaster, or that the failure of the carrier by canal to protect his cargo, or to furnish means by which it may be done, according to his contract, are to be reckoned among the perils of the sea. The carrier is liable upon his contract according to its terms. It is also urged by the plaintiff that the defendants knew, when the boat departed, that the beans had not been covered and that the lumber furnished was insufficient to cover them, and there is color for this assertion in the referee's report; not in the case as settled. If this was so, it would not excuse the plaintiff, for his contract was to protect the goods during the entire trip, not merely at the moment of departure.

Upon the findings of the referee the defendants were entitled to recover, and he erred in refusing to find the conclusions of law as requested, and in making the conclusion of law which gave judgment to the plaintiff.

This result makes it unnecessary to review the order denying a new trial for surprise also referred to in the notice of appeal.

The judgment of the General Term and that entered on the report of the referee should be reversed and a new trial granted, with costs to abide the event.

All concur.

Judgment reversed.