Penoyer & Luff v. Hallett , 15 Johns. 332 ( 1818 )

Spencer, J.

delivered the opinion of the court. Two questions arise : 1. Could the plaintiff recover on the charter party ? if not, 2, is he entitled to a pro rata freight on the outward cargo ?

The case of Barker v. Cheriot, (2 Johns. Rep. 352.) decides the first point. In that case a vessel was chartered for a voyage from New-York to Martinique, and back to New-York, for the entire sum of 4,500 dollars, payable 60 days after the delivery of the return cargo at New-York. The outward cargo was delivered at Martinique, and while on the return voyage with a cargo, she was captured and carried into Antigua, where the cargo was libelled and ordered to be retained for further proof. The vessel returned to New-York without the goods except a few articles left on board. The goods were afterwards ordered to be returned to the claimants, but neither'the goods nor proceeds ever came to the hands of the owners or insurers. The court held, that it was one entire voyage from New-York to Martinique and back again; and that as the vessel was captured on her return, and did not deliver the return cargo, no freight was due, notwithstanding the defendant had the benefit of the outward voyage; because, by the express agreement of the parties, the outward and homeward voyage were one, and the profit depended on the entire performance. The same principle was recognised in Scott v. Libby and others, (3 Johns. Rep. 340.)

The present case presents an entire contract. The vessel was chartered to proceed from New-York to St. Bartholomews, and, if required, to St. Kitts, and back to New- York ; and the defendant agreed to pay 1,500 dollars for the vessel for the voyage out and home, on her return to New-York. The return of the vessel, therefore, is a condition precedent, and not having been performed, it is impossible to say that the plaintiff can sustain his action on the charter party.

The counsel for the plaintiffs pressed upon the court the case of Simond & Hankey, stated in Abbott. (318.) That case differs materially from the present; and Lord Mansfield, in giving his opinion, says, “ if there be one entire voyage out and in, and the ship be cast away on the homeward voyage, no freight is due, no wages are due, because the whole profit is lost, and by express agreement the parties may make the outward and homeward voyage one.” The case of Byrne and others v. Pattinson, cited by Abbott, (319.) is one very analogous to the present, and it received a dey cisión in accordance with that in Barker v. Cheriot. The case of Liddard v. Lopes, (10 East, 529.) further illustrates the correctness of the decision in Barker v. Cheriot. In that case Lord Ellenborough observed, “ the parties have entered into a special contract, by which freight is made payable in one event only, that of a right delivery of the cargo according to the terms of the contract, and that event has not taken place ; - there has been no such delivery, and consequently the plaintiff is not entitled to recover; he should have provided in his contract for the emergency which has arisen.”

Had the defendant himself accepted the outward cargo at St. Bartholomews, it would not have entitled the plaintiff to a pro rata freight, because of the entirety of the contract; but in the present case, it does not appear that Cock, who caused the cargo to be sold, had any authority to do so; he acted from the necessity of the case.

It is impossible to raise an implied promise to pay the outward freight, on the ground of the labour performed in carrying the defendant’s goods, when the carriage of the goods was regulated by a contract, part of which only was performed, and the other part remained unperformed; the entire performance of it being a condition precedent.

Judgment for the defendant. .