author: By the Court. Woodruff, J.

text:
    Rowland, Plaintiff and Respondent, v. Phalen & Coit, Appellants.
    When, by a written agreement, the parties to it “bind themselves’ to perform it, and do not by its terms nor by implication bind any other person, they are personally liable to do or cause to be done, and to pay what they stipulate shall be done and paid, although they are in truth acting on the behalf or for the benefit of others: If in such an agreement they designate themselves as a committee of management, such designation will be regarded as a descriptio personarum.

    When, by such an agreement, one of two parties promises to pay money, the natural construction is, that the other party is to receive it, unless the agreement otherwise provides. When, by the agreement, the parties stipulate that a sum named shall be paid in weekly instalments, not saying by whom they shall be paid, and that “ a further sum” shall be paid by the parties of the second part, and especially When the consideration of the whole contract moving from the other party is to be delivered to and received by said parties of the second part, the true construction is that, the last named parties personally undertake to pay such instalments as well as the “ further sum.” And the party of the first part is the person to receive all of such payments, when the agreement neither specifies any other person as the one to whom either of such payments is to be made, nor fairly imports that some other person is to receive them.
    A stipulation in such an agreement that, “a further sum of five thousand dollars, as an indemnity to Isaac Jacobsohn, is to be paid in two notes of equal amounts, at six and eight months, by the parties of the second part,” imports, for the same reasons that, the party of the first part is the person entitled to receive the notes.
    Such agreement declaring that, the party of the first part is “ acting in behalf of Isaac Jacobsohn & others, interested in the contracts and engagements of sundry artists recently introduced into this country through the medium of Messrs. Tillman and Strakosch,” and by it, the party of the first part stipulating and obligating himself, “that, the artists above named are to be transferred and the contracts assigned to the parlies of the second part for the term of two months,” the whole scope and obvious meaning of such agreement indicate that, the plaintiff (whether with or without authority) assumed to act on the behalf of Jacobsohn & others not named, and to bind himself personally to accomplish certain results beneficial to the parties of the second part, in consideration of their agreement to pay to him for the benefit of those for whom he acted the money and notes stipulated for. In this aspect of the agreement, he is “a trustee of an express trust," as defined by § 113, of the code, and may sue in his own name, without joining with him those for whose immediate benefit the action is prosecuted. There is, therefore, no defect of parties, by reason of not making them parties to the action.
    If, under such an agreement, a delivery of the two notes to Jacobsohn would satisfy it qmad hoc, it is matter to be pleaded by Way of defence, and the complaint need not aver that they have not been so delivered, in addition to an allegation that the plaintiff; (the party of the first part) has duly demanded them, and that the parties of the second part refused to deliver them.
    It is not essential to a sufficient complaint, on such an agreement, that the plaintiff should allege that he had authority to make such a contract. The personal obligations which, by it, -he assumes, constitute a sufficient consideration to uphold it.
    An averment, in a complaint on such an agreement that, “he, (the party of the first part), and those on whose helialf the said agreement was made and entered into by Mm, have fully and faithfully performed and fulfilled all, and singular the covenants, and agreements, in the said agreement contained, on the part of the said plaintiff and those on whose behalf the said agreement was made and entered into by him as aforesaid,” is, under § 162 of the code, a sufficient allegation of the performance of the conditions, precedent to his right to demand the stipulated payments. v
    The fair meaning of that section is, that it may be stated generally that, the person or persons, by whom the conditions were to be performed, have duly performed, &c. But the plaintiff being a party to the suit and to the contract, an averment that he has fully and faithfully performed, &o., is an averment that every thing was done which he was bound to do or cause to be done.
    The dausé, by wMch the parties agreed “to execute a legal instrument, in due form of law,” &c., &c., cannot be so construed as to make the agreement actually signed merely mean that, by it the parties incurred no obligation except to execute such further instrument; as all the rights and obligations of the parties were settled and defined by the one they did execute. Although the complaint designates distinct parts of it as further causes of action, such designation may be disregarded, when it appears on the face of the complaint itself) that in truth they are only distinct and several breaches of the agreement copied into the complaint. Therefore, a demurrer cannot be sustained to any one of them, as not stating facts sufficient to constitute a separate and distinct cause of action.
    The making of the agreement and performance thereof by the plaintiff being once stated, the several allegations, of the breaches thereof by the defendant, may be regarded as distinct grounds of recovery rather than separate and distinct causes of action, and these breaches may properly be stated without repeating, before each breach, the averment of such making and performance by the plaintiff.
    The order, overruling a demurrer to the complaint, affirmed with costs.
    (Before Oaklet, Ch. J., and Duer, Bosworth, Hoffman, Slosson, and "Wood-ruff, J.J.)
    Heard, March 21st.
    Decided, April 11th, 1857.
    This action comes before the court, at general term, on an appeal by the defendants from an order, made by Mr. Justice Bosworth on the 26th of April 1856, over-ruling, in part, their demurrer to the plaintiff’s complaint. The complaint and demurrer, excluding the title of the action, and the fourth cause of action, are as follows: “David Rowland, plaintiff in this action, by Lee & Smidt; bis attorneys, in this his amended complaint, complains of James Phalen and Henry A. Coit; defendants, and says that, prior to the 5th. day of May, A.D. one thousand eight hundred and fifty-five, he was acting on behalf of Isaac Jacobsohn and others, who were interested in the contracts and engagements of sundry artists referred to in the agreement hereinafter set forth, and that certain written contracts and engagements existed with them by which they were bound to perform at Niblo’s Theatre, or Opera House, in New York and elsewhere, which the defendants, being then the Committee of Management of the Italian Opera at the Academy of Music in said city, well knew, and that they were desirous of obtaining the services of such artists as performers at said Academy, and that for that purpose the said plaintiff and defendants, having made an agreement to effectuate that object, 'on the said 5th day of May, A. D. one thousand eight hundred and fifty-five, at the city of Hew York, reduced the same to writing, and then and there entered into a certain agreement in the words and figures following, viz.:—
    “Memorandum of agreement made 5th day of May, 1855, between David Rowland on the one part, acting in behalf of Isaac Jacobsohn and others, interested in the contracts and engagements of sundry artists recently introduced into this country through the medium of Messrs. Ullman and Strakosch; and James Phalen and Henry A. Coit, acting as a Committee of Management of the Italian Opera in the Academy of Music, do hereby stipulate and agree as follows, viz.:—That the following sums are to be paid at the rate of two thousand dollars per week, commencing from the 7th of May, on the Saturday of each week, viz.:—Advances made by the parties of the first part to Madame De La Grange, Signors Murati, Morelli and Marini, amounting in the aggregate to . . . . $12,100 00 Back rent to Hiblo’s..... 8,000 00 Travelling expenses . . . . 1,650 00
    ' $16,750 00
    The excess of $750 to be paid, say on the last week.
    A further sum of five thousand dollars, as an indemnity to Isaac Jacobsohn, is to be paid in two notes of equal amounts, at six and eight months, by the parties of the second part, that the balance of the rent agreed to be paid to Mr. Hiblo, say $2,250, is to be assumed by them.

      Now, in consideration of the preceding articles of agreement, the undersigned, parties of the first and second parts, do hereby respectively stipulate and obligate themselves that the artists above named are to be transferred and the contracts assigned to the parties of the second part for the term of two months, commencing from the 1st day of May instant. Furthermore, the parties of the one and the other part do hereby obligate themselves to execute a legal instrument, in due form of law, binding themselves each to the other to carry out and fulfill to the fullest extent the purpose and intent of the object of this agreement.
    addendum.
    In consideration of certain sums expended by the party of the first part, for printing, advertising and salaries to chorus and orchestra for the current week, the bills of which are to be rendered by Mr. B. Ullman, the party of the second part, agree to reimburse him therefor.
    David Rowland,
    Witness our hands, New York, James Phalen,
    May 5,1855, Henry A. Coit.”
    Witness—Henry Wikoff.
    And the plaintiff further says, that he and those on whose behalf the said agreement was made and entered into by him, have fully and faithfully performed and fulfilled all and singular the covenants and agreements, in the said agreement contained, on the part of the said plaintiff and those on whose behalf the said agreement was made and entered into by him as aforesaid, but that the said defendants have never executed or offered to execute any other legal or other instrument, in due form of law or otherwise, to carry out or fulfill in any way the purpose and intent of the said agreement.
    And plaintiff further says, that on the 12th day of May, A.D. one thousand eight hundred and fifty-five, the sum of two thousand dollars became due from the said defendants to the said plaintiff, parcel of the sum of sixteen thousand seven hundred and fifty dollars, in the said agreement mentioned; and the said defendants, although’requested so to do, have no.t paid the same or any part of it,

      Second.—And for a further cause of action, plaintiff says that on the 19th day of May, A. D. one thousand eight hundred and fifty-five, the further sum of two thousand dollars became due from the said defendants to the said plaintiff, other parcel of the sum of sixteen thousand seven hundred and fifty dollars, in the said agreement mentioned, and the said defendants, notwithstanding their said agreement, have not paid the same, or any part of it.
    Third.—And for a further cause of action, this plaintiff further says, that on the said twelfth day of May, the two promissory notes for the sum of twenty-five hundred dollars each, mentioned and described in the above agreement, and therein agreed to be given by the said defendants, were duly demanded by the plaintiff under the said agreement of the said defendants, and they refused to deliver the same. »
    Wherefore the plaintiff demands judgment against the defendants for the sum of fifteen thousand dollars, with interest thereon, from the 26th day of May, A. D. one thousand eight hundred and fifty-five, besides the costs of this action.”
    “ The defendants above named, by Benjamin Galbraith, their attorney, say:—
    First.—As to the first division of the complaint, and as to the supposed cause of action in the complaint first alleged, that they demur thereto because it appears on the face of the complaint that the said first division of said complaint does not state facts sufficient to constitute a cause of action.
    Secondly.—As to the second division of the complaint, and as to the supposed cause of action in the complaint secondly alleged, that they demur thereto because it appears on the face of the complaint that the said second division of said complaint does not state facts sufficient to constitute a cause of action,
    Thirdly.—As to the third division of the complaint, and as to the supposed cause of action in the complaint thirdly alleged, that they demur thereto, because it appears on the face of the complaint that the said third division of said complaint does not state facts sufficient to constitute a cause of action,
    Fourthly,—As to each and all of the alleged causes of action stated in the complaint,.that they demur thereto because it appears upon the face of the complaint that there is a defect of parties, and that Isaac Jacobsohn, and others interested in the contracts stated in the complaint, and Messrs. Ullman and Strakosch and Madame De La Grange, and Signors Murati, Morelli and Marini, and William Uiblo, are necessary parties, plaintiff or defendant.
    Fifthly.—As to each and all of the alleged canses of action ■ stated in the complaint, that they demur thereto because it appears upon the face of the complaint that several causes of action have been improperly united therein.”
    The directory part of the order appealed from, reads thus:
    “ It is ordered and adjudged that judgment be entered for the defendants upon the demurrer to the fourth cause of action set' forth in the complaint, with leave to the plaintiff to amend the complaint within twenty days, without costs, unless the plaintiff shall elect to strike out the said fourth cause of action within twenty days, and in case he does so elect and give notice of such election to the attorney for the defendants, then it is ordéred and adjudged that judgment be entered for the plaintiff upon all the demurrers to the complaint, with leave to the defendants to answer the complaint within twenty days after the service, of the notice of such election, without costs.”
    On the 10th of May 1856, the plaintiff served notice of his election to strike from the complaint, the 4th cause of action stated therein.
    On the 5th of June 1856, the defendants served notice that they appealed from the order of the 26th of April, 1856.

      D. D. Field, & B. Galbraith, for the Appellants, made and argued the following points.
    I. Where a complaint contains several alleged causes of action, each statement of a cause of action must be complete in itself.
    In this case, each claim is not complete in itself.
    H. The first claim or division of the complaint does not state facts sufficient to constitute a cause of action.

      a. The contract set out shows an agreement by the defendants “as a committee of management,” and not individually, and there is no allegation that they made the contract without authority.

      Stanton v. Camp, 4 Barb. 274; Calvin v. Holbrook, 2 Coms. 129; Downman v. Williams, 7 Q. B. 103; Higgins v. Hopkins, 18 Law, J. 113 Ex.; Russell v. Reece, 2 Car. and Kir. 669; Babcock v. Beeman, 1 Kernan, 200.

      b. The contract set out does not in terms or by necessary implication point out who is to make the payment of $2,000 per week, nor to whom the payments are to be made, and there is no allegation to explain this ambiguity.
    c. The contract set out does not show any consideration moving to the defendants for the making of it, at least no consideration moving from the plaintiff, and it is void for that reason.
    It does not appear that the plaintiff 'had any authority to act for the parties interested in the contract or to transfer the artists or to assign the' contracts, or that he would do it or cause it to be done. The obligation to transfer the artists and assign the contracts is a joint one of the plaintiff and defendants.

      d. If the said contract can be construed to mean that the defendants were to pay the $2,000 per week, and the plaintiff was to transfer the artists and assign the contract, the transfer of the artists and assignment of the contracts was a condition precedent to the payment of the weekly sum of $2,000.

      Grant v. Johnson, 1 Selden, 247.
    e. The performance of the condition precedent is not sufficiently alleged. The allegation does not follow the code (s. 162.) The code requires the word “ duly," and that word should be used.

      Jacobs v. McDonald, 8 Mo. R. 565.
    The averment of performance is not sufficient, independently of the code.

      Thomas v. Van-Ness, 4 Wend. 553.

      f. It is not alleged that the defendants had notice of the performance by the plaintiff of the condition on his part.

      g. It is not alleged that the $2,000 became due in respect to the said contract.
    HI. The second claim or division of the complaint does not State facts sufficient to constitute a cause of action.

      a. It does not, by reference or otherwise, incorporate the preceding allegations of the complaint, or in anywise allege more than is therein alleged, and the allegations, in that division of the complaint, show no duty and no breach on the part of the defendants.

      b. If the instalment became due before the commencement of the action, it should have been included in the first claim or division; the failure to pay the second instalment was a part of the plaintiff’s cause of action, and not a separate cause of action.
    IV. The third claim or division of the complaint does not state facts sufficient to constitute a cause of action.

      a. The agreement, if considered as part of that claim, and if valid and binding, is an agreement to give notes to Jacobsohn and not to the plaintiff.

      b. The failure to deliver the notes would not give a cause of action for the amount of them, but only a cause of action for the damages sustained by the breach.

      c. The delivery of the notes was at least conditional on the plaintiff performing his condition precedent, and it is not alleged that the demand of the notes was after performance of said condition precedent.
    V. The agreement set forth is too vague and uncertain to be enforced.
    Chit. Con. 72.
    VI. The agreement set forth in the complaint contemplated the execution by the parties of a formal instrument defining their rights and obligations respectively. The defendants incurred no liability, except to execute such an instrument, and the only cause of action is upon a refusal to do so. No request or refusal is averred and therefore no cause of action is made out. This objection goes to all the causes of action stated in the complaint. 9 J. R. 336.
    VII. Jacobsohn and his associates, Ullman and Strakoseh, Lagrange, Murati, Morelli and Marini, are necessary parties, for without their presence a complete determination of the controversy cannot be made. In no other way can the defendants be protected from other suits by these persons upon the same claims as are set up in this complaint.
    VIII- Not only are other persons necessary parties, but if they were brought in, the complaint would contain several in-, compatible causes of action. If the first two claims concern the plaintiff alone, the third concerns him and Jacobsohn, and the fourth concerns Lagrange and the other artists.

      Wm. Curtis Noyes, for Resp’t.
    I. —The first division of the complaint states facts sufficient to constitute a cause of action: 1. It sets forth an agreement entered into between the parties to the suit by which each is personally bound, as for himself, and not for others. Taft v. Brewster, 9 J. R. 335; Moss v. Livingston, 4 Comst. 208. That agreement is a valid and binding one, upon the parties to the same, they having personally hound themselves. 2. It alleges the faithful performance of that agreement on the part of the plaintiff, which is enough under the Code; as all the facts essential to a complete performance are embraced in the general averments, by force of the statute, even to a tender of written assignments and transfers, if that be necessary. Code, § 162. Van Santvoord’s Pr., 2d ed., 235. 3. It alleges a breach of that agreement on the part of the defendants in not paying the sums required to be paid, and the demurrer admits both the performance of the conditions by the plaintiff, and the breach by the defendants. 4. It makes no difference in this case, that a further agreement was to be executed, as an action lies for not performing that part of this agreement, and this action embraces that cause of complaint. Cowley v. Watts, 17 Jurist, 172. S. C., 17 Law & Eq. 147.
    II. —The first point will apply equally well to the second, third, fourth and fifth grounds of the demurrer, and to the third cause of action, the defendants having agreed to give the notes, were bound to perform their agreement, having positively assumed so to do in their own name.
    III.—There is no defect of parties. 1. It was not necessary for the plaintiff to join others with him as plaintiffs, as he is the “ trustee of an express trust,” being a person in whose name the contract in the complaint set forth is made, for the benefit of others. Code of Procedure, § 113. 2. It would not have been proper to join other parties with the defendants; because,

      a. It does not appear, on the complaint that, the plaintiff has any cause of action against any of the parties named in fourth demurrer.

      b. It does not appear that, the parties named have any rights adverse to the plaintiff, or that they are in any way necessary parties.
    There should be judgment for the plaintiff affirming the decision! on. the demurrer,. with costs.
   By the Court. Woodruff, J.

It is unnecessary to enlarge upon the proposition that individuals may, if they think proper, bind themselves personally to the performance of-any engagement, although they are in truth acting on the behalf or for the benefit of others—and when, bn the face of an Instrument, they profess, in terms, to bind themselves, and neither, in terms nor by implication bind any other person, or if in form they bind themselves, then, whether any other is or is not also -bound, they are liable. In this complaint and in the agreement set-forth, the defendants are described as a Committee of Management of the Italian. Opera. But the languagé of the agreement is, they “ bind themselves.” What the office or duty of a committee of management may be we cannot say—it is here, at most, a descriptio personarum. It does not import any authority to contract for any other person, or persons, or corporation—it does not imply thát any other persons will be bound by their acts but themselves, nor does it purport to bind any other person, or persons, or cor? poration to do or perform anything.

I cannot hesitate in saying that, if the agreement set forth was binding upon the defendants in. any sense, it was a ctintraet binding them personally to its performance.

.In-considering whether the agreement, in question, sufficiently indicates by whom and to whom the payments are to be made, it is proper to observe that by the rule which requires certainty in-a-contract, courts are not called upon to exercise great ingenuity, and - become' astute to find or suggest a doubt of its mean? ing. . If, when read in connection with the whole subject matter to which it. relates, and according to the ordinary and natural acceptation of the terms employed, the intention is clear, that in? tention is to prevail; and this is true, even where the language is ambiguous, if the intention be obvious.

Again, in an agreement, between two, stipulating for the payment of money, if it plainly appears which of the two is to pay, it follows not merely as the natural, but as the sound legal construction of the instrument, that the other is to receive the payment, unless the agreement itself provides that the payment shall be made to some other person; e.g., if in a contract, between A. and B., it is agreed, that A. shall pay one thousand dollars, and that B. shall deliver one thousand bushels of wheat, no one would hesitate to say, and no court would hesitate to adjudge, that it was the manifest intention, that A. should pay the money to B., and that B. should deliver the wheat to A.

Does this contract show by whom the respective instalments of $2,000 a week are to be paid? It does, as I think, very plainly.

When first named, the language is, “ that the following sums are to be paid at the rate of $2,000 per week,” &c. But when we look a little'further, in the agreement, we find that a farther sum is to be paid by the parties of the second part. How are they to pay a farther sum unless they also are to pay the first?

Not only this, but, in the succeeding clause, we find that, in consideration of these stipulations, the artists are to be transferred, and certain contracts assigned to the parties of the second part; that is, according to the obvious meaning, the parties of the second part are to receive the transfers and assignments, in consideration of the stipulation for the payments, and these are of course to be -made by them, else the stipulation for the payments could constitute no consideration for what they are to receive. Words might be multiplied upon this point, but it seems to me that no intelligent and unbiassed mind can read the agreement without declaring, without hesitation that, the intention is plain that, the parties of the second part (the defendants) are to pay the $2,000 per week, as they, in express terms, agree that they will the farther sum also mentioned.

Nor does it appear to me less certain to whom the payments are to be made. I have already said that if it be clearly ascertained by which, of the parties, the payment is to be made, it follows that the payment is to be made to the other, unless the agreement points out some other person, who is to receive the payment.

In addition to this, the covenant, made in consideration of the agreement to pay, binds the party of the first part, (the plaintiff), to a transfer and assignment of the contract to the parties of the second part. It is the reasonable and natural inference that the payments, in consideration of which he enters into that engagement, are to be made to him. And it does not appear, either in terms, nor by any obvious implication, that the payments in question are to be made to any other person. While on the other hand, when a payment, to a third person, was contemplated, totally different language was used; thus the balance of the rent agreed to be paid to Mr. Niblo, say $2,250, is to be assumed by them.”

It was suggested, on the argument of the appeal, that because in making up the aggregate, which was to be paid by the instalments stipulated, the sums are spoken of as advances made by the parties of the first part,—which should be taken to mean not only the plaintiff, but those on whose behalf he acted,—that therefore it is to be implied that the payments were to be made to the particular persons who made the advances—and as to the back rent, that it should be paid to Niblo, &c.

In the first place, this construction is not at all necessary to make the agreement intelligible, nor the necessary import of the language. If the plaintiff, acting as trustee for the other persons, bound himself to the performance of acts, affecting the interest of those for whom he was trustee, and especially if, for the performance of his agreement, he would find it necessary to have their co-operation, it was natural that he should require, that the means should be placed in his hands, which would not only enable him to protect their interest, but which he could control, so far at least,' that he might make it available, in procuring their co-operation—making himself personally liable, he might naturally provide, that he should control the consideration, so far, that if his performance failed for the want of such cooperation, he would not both lose the consideration and remain liable on his agreement.

But what seems to me decisive upon this question is, that the sums agreed to be paid were instalments of one aggregate sum; if the money was to be paid to several, and the amounts each was to receive were different, they would have been specified. This paying by instalments cannot be reconciled with the construction contended for. There is no one of the three items making up the $16,750, to which the first, or the second, or any other of the instalments was applicable. To say that these instalments were not to be paid to the plaintiff, is to place the defendants in a situation, in which, they could not pay if they would, and so to make the agreement void. A construction tending to this should not be adopted, if any other construction is rational, and tends to accomplish the intention of the parties. Besides, it seems to'me quite obvious, that the description of the items, making up the aggregate of $16,750, was used as matter of mere description, and not, at all, as a designation of persons to whom the defendants were to make the payments.

Many of these suggestions, if not all, apply to the stipulation that “ a further sum ” of $5,000, as an indemnity to Isaac Jacobsohn, is to be' paid in two notes, of equal amounts, at six and eight months, by the parties of the second part. The nature and object of the indemnity, mentioned as the purpose which these notes were to serve, is not stated, and what damages have been sustained, by the non-delivery of the notes, does not perhaps appear; but it seems to me far from doubtful that the parties intended that the notes should be given to the plaintiff. The language does not import that Jacobsohn should receive them; his indemnity might never require that he should even have the benefit of them. The same reasons, that made it proper that the plaintiff should receive the other payments, would also suggest that he should receive the notes. He gave the consideration, i.e. he bound himself that the consideration should come to the defendants, and the words used do not indicate that their performance was not to be to him directly.

It is no unnatural reading of this part of the agreement that the plaintiff was made the recipient or depositary of the two notes, the puqpose and object of which notes was explained to be Jacobsohn’s indemnity; and it may be said that the plaintiff was to see to the application of the notes, or the proceeds thereof, to that object. The reference to Jacobsohn seems not for the purpose of designating to whom the notes should be given, but the reason why they were given, and perhaps the purpose to which the plaintiff, as trustee, should apply them. The whole scope, and to my mind, the obvious meaning of the agreement, indicates that the plaintiff (whether with or without authority) assumed to act on the behalf of Jacobsohn and others not named, and to bind himself personally to accomplish certain results beneficial to the defendants, in consideration of their agreement to pay to him, for the benefit of those for whom he acted, the money and notes stipulated for. That he acted, in this, as the trustee for those who were beneficially interested in the matters to which the agreement relates.

In this aspect of the agreement the plaintiff answers perfectly the definition of a trustee of an express trust in section 113 of the code of procedure, viz: “a person with whom or in whose name a contract is made for the benefit of another.” And this seems to me to define his position in reference to all the payments stipulated for in this agreement, and to dispose of the objection that, other parties (for whose benefit the agreement was made) should have been joined in the action, either as plaintiffs or defendants.

Surely if the agreement in relation to the notes, instead of reading, “ as an indemnity to Isaac Jacobsohn,” had read, “ for the benefit of Isaac Jacobsohn,” the case would not be less strong for the defendants, and yet that would be in the very terms of the section of the code referred to; and in such case, the code provides that the trustee may sue in his own name, without joining with him. the person for whose benefit the action is prosecuted.

It is suggested that, a payment or delivery of the notes directly to Jacobsohn would satisfy the agreement, and that the complaint does not aver that such payment has not been made. This proceeds upon the assumption that on an agreement to pay to one for the benefit of another, payment directly to such other is a performance of the agreement, and this is not, in my apprehension, true. At law it is no performance at all; in equity such an agreement may be enforced by the person beneficially interested, but he could not sue upon the agreement, at law, unless he showed that, the relations between him and the party in whose name the contract was made were such that, it was, in law, an agreement with himself. This latter class, of cases are numerous, (see Union Ind. R. Co. v. Tomlinson, 1 E. D. Smith, 364), but it is unnecessary to dwell upon them, because there are also many cases in which, although it be true that he, for whose benefit the contract is made, may sue at law upon it, so also may he, in whose name it is made.

And where in.fact a contract is made with a trustee, as such, he could always sue thereon in his own name. Besides if the suggestion that a delivery of the notes might be made to Jacobsohn be conceded, it amounts only to this, that the defendants may defend the action by showing that the notes have been so delivered; it is matter to be set up affirmatively by the defendant, which the plaintiff is not bound to anticipate and deny.

In regard to the alleged want of consideration, moving to the defendants, arising from the failure of the plaintiff to show any authority to contract; Much that has already been suggested bears upon this ground of demurrer and tends to show that it is without just foundation. It must suffice to add that, on the face of the agreement, the plaintiff bound himself that certain artists should be transferred and certain contracts assigned. This agreement is alone consideration enough to support the counter-agreement by the defendants, unless the agreement on his part was illegal or impossible of performance. Here is no pretence that the things which the plaintiff agreed should be done were illegal. An agreement cannot be said to be impossible because for its performance the concurrence of a person or persons not parties to the agreement is necessary. In such case, the agreement imports that the party binding himself will cause it to be done; it assumes the employment only of legal and proper means for its performance; that those means will be used by the agreeing party, and he guarantees that those means shall be effectual; if not, he is liable for a breach of the agreement.

A. may covenant that certain land shall be conveyed to B. on a day specified, B. paying to A. a sum of money. Such an agreement is neither illegal nor, in judgment of law, impossible, because at the making of the covenant the land is owned by C. The construction of such an agreement is that, for the consideration agreed to be paid, A. will cause the land to be conveyed to B., and A. takes the hazard of being able to accomplish that result.

So here, the plaintiff agreed that the artists should be transferred and the contracts assigned. He undertook to cause it to be done, and the fact, that the assent or concurrence of the artists or of those who held the contracts, must be procured to enable him to perform, did not make the obligation to perform any less his obligation. He took the hazard of accomplishing all that was requisite to the complete performance of what, by the terms of the agreement, was due to the parties of the second part, the defendants.

The views last suggested have an important bearing upon the objection that, performance of all that was due to the defendants was a condition precedent to their obligation to pay, and that such performance is not sufficiently alleged.

The defect in the allegation is claimed to be this, that, it appears that the transfer of the artists and the assignment of the contracts necessarily required that persons other than the plaintiff should perform, and that the plaintiff was bound to state in detail what they did, because the Code, § 162, only warrants a general statement of the performance of conditions precedent which are to be performed by the plaintiff himself.

The language is that “in pleading the performance .of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part.”

It seems to me the most reasonable construction of this section to say that, “ party ” here means the person or persons by whom the conditions were to be performed—certainly it does not necessarily mean the plaintiff in the suit; if it did then the assignee of a claim founded on such a contract, could not avail himself of the benefit of the section where the conditions had been performed by the person with whom the contract was made. Nor must it necessarily and invariably be the person who is the party to the contract, for it may often be true that the interest in a contract being assigned to another, he performs all the conditions and is entitled to the payments. We are instructed by the Legislature to construe the allegations in a pleading liberally with a view to substantial justice between the parties, (Code, § 159). And again it is enacted (§ 467) that the rule, that statutes in derogation of the common law, are to be strictly construed, has no application to the code.

Unless, then, we are critical, to a degree which would exclude the operation of this section 162, from large classes of cases which are in all respects within its spirit and general intent, and unless we must adhere to a purely strict and technical interpretation. of its words when, no beneficial purpose renders it necessary—unless indeed, we undertake to give to the word, “ party ” a meaning which it does not necessarily require, in order to restrict the application of the section to as few cases as possible, and leave the inconvenietice the section was designed to remedy to exist in as many cases as possible, we must say that the section means that, it may be stated generally that the person or persons by whom the conditions were to be performed, have duly performed, &c.

This construction of the section is not, however, necessary to the maintenance of the averment in question. Here the averment is made by one who is both a party to the suit and a party to the contract; he agreed that the artists should be transferred and the contracts assigned; if any concurrent action of others was requisite to the performance of his engagement, he was to procure that concurrence. He made the agreement that it should be done. When, therefore, he avers that he has fully and faithfully performed all and singular the covenants, &e., on his part, he does aver that every thing was done which he was bound to do or to cause to be done; and he only strengthens this covenant when he adds that those on whose behalf he acted, have also performed. In no aspect can the addition of this statement impair the effect of his averment, though I think it was not necessary.

The claim that, under the agreement set forth in the complaint the defendants assumed no obligation except to execute another. more formal instrument, and that there being no averment of a request and refusal no breach is alleged, admits of a twofold answer.

It is not apparent from the tenor of the stipulation, that it contemplated anything more than such further assurance as might be found necessary—not to define and settle the rights of the parties under the agreement then reduced to writing—but to effect the full accomplishment of “ the purpose and intent of the object of the agreement ”—i. e. the ultimate motive which led to the making of the agreement.

But another answer seems quite sufficient. So far as appears by the contract before us, all the rights and obligations of the parties were defined and settled by what was then writtem In order to the binding character of the obligations of the parties, no further writing was necessary, and the court will never say that a party shall not recover upon a valid binding contract, merely because the parties, at the time it was written, contemplated making another agreement of the same purport; the making of the latter in such case would be a work of supererogation, wholly immaterial and superfluous as to either of them.

And once more, if any act of this sort was necessary to entitle the plaintiff to claim performance by the defendants, i. e. if in any just sense his execution of such further agreement was a condition precedent to his right to demand the payment, then bis averment of the performance of all the conditions, covers this condition with the others.

The objection that those parts of the complaint which are denominated farther causes of action, are incomplete in themselves and, read separately, show no cause of action, was not strenuously insisted upon, on the argument, of the appeal. The points submitted treat them like separate counts in a declaration under our former system of pleading. They are more properly to be regarded as separate breaches of the one agreement set forth in the complaint. In that respect they are like the common practice of alleging several breaches in a single count in the former action of covenant broken.

The pleader here, has chosen to call each a further cause of action; in one sense they are. They are substantive grounds of recovery upon the agreement which is set forth, and to which each in terms refers. It was, perhaps, unnecessary to call them separate causes of action: but at most, that was an immaterial designation of what are very plainly nothing more than alleged several breaches of the one agreement referred to. To require the pleader to repeat the averments, setting forth the making of the agreement, and its performance on the part of the plaintiff before each statement of a breach, would not only be requiring what was wholly unnecessary before the code, but would be requiring a useless repetition, which the code in terms forbids. § 142.

What has already been said in relation to the right of the plaintiff to sue in his own name, (under § 113,) without joining those for whose benefit the contract is made, and his right to require that the payments be made to himself, disposes of the objection that, there is a defect of parties, as well as the suggestion that, causes of action are improperly joined.

The order appealed from should be affirmed with costs.

Duer, J., dissented.


source: Caselaw Access Project

author: Bosworth, J. Hoffman, J.

license: Public Domain

text:
    Aaron Van Valkenburgh v. The Astor Mutual Insurance Company.
    The insurance, in this case, was upon goods “from New York by steamer or steamers, to Chagres, at and from thence by the usual conveyances across the Isthmus to Panama, and at and from thence by steamer or steamers to San Francisco.”

      Held by Boswobth, J.—That the policy covered three distinct voyages by different conveyances, and that the implied warranty of seaworthiness attached at the commencement of each.

      Held contra by Hoitmait, J.—That although the conveyances were different, the voyage was entire, and that the implied warranty attached only at the commencement of the voyage from New York.
    It was found" by the Judge, who tried the cause without a jury, that the goods insured were damaged by being saturated with water during their transportation in a flat boat on the Chagres. river, that the water entered and came into the boat by reason of its leaking when the goods were put on board, and that such damage was not, nor was any part of it, caused by rain or spray.
    ■ Held by the Court.—That it was a necessary conclusion from the facts thus found, that the goods were not damaged by the perils insured against, and consequently the defendants were not answerable for the loss.
    Judgment for the defendants affirmed with "costs.
    (Before Boswobth and Hoeksiaw, J.J.)
    Heard February 12,
    decided April 11, 1857.
    This is an appeal by the plaintiff from a judgment, at Special Term, in favor of the defendants.
    The action was on a policy of insurance upon goods, at and from New York by steamer or steamers to Chagres, at and thence by the usual conveyances across the Isthmus, at and thence by steamer or steamers to San Francisco. The goods, upon their arrival at San Francisco, were found to be greatly damaged by water, and it was for the recovery of this loss, as occasioned by the perils of the sea, that the action was brought.
    It was tried, by the consent of the parties, before Mr. Justice Bosworth, without a jury, in May, 1854. The following are the propositions of fact, found by the Judge upon the pleadings and evidence, and his conclusions of law thereupon:
    I. That the said plaintiff was insured by the defendants, upon the goods alleged to have been damaged, under the policy of insurance hereinbefore set forth.
    H. That said goods were carried by steamer to Chagres, at and thence by the usual conveyances across the Isthmus, and at and thence by steamer to San Francisco. Said goods, before being put on board of the steamer in which they left New York, having been delivered in New York, by the plaintiff, to the express companies of Adams and Company or Gregory and Company, under the receipts hereinbefore set forth, and under an agreement for the transportation thereof, as therein contained and thereby expressed; that the said express companies received from and were paid by the said plaintiff the whole freight upon the said packages respectively, from New York to San Francisco, and made their own agreements with the said steamship company, for the transportation thereof to San Francisco.
    HI. That the conveyances by which these goods were carried across the Isthmus were flat boats, owned by the river boatmen; and that the express companies did not own them, nor any of the steamers used in the transportation of the goods, but that they were the usual boats and the usual means of conveyance employed in transporting goods up the said river, which had been shipped at New York, on board of the steamers of the said steamship company, to be carried thence by the aforesaid route to San Francisco, California.
    IV. That the defendants knew, at the time of making the several endorsements on the policy, that the goods referred to in these endorsements were to be sent (by the plaintiff) by the express companies by whom they were sent. That the receipts given by the express companies were the usual receipts given by them, and in the form usually given by them to all persons who sent goods by them, That the plaintiff did not communicate to the defendants anything as to the character of the agreement he had made with the express companies, or that he had made any special agreement with them; and that the defendants had no knowledge, until after the loss happened, (except so far as such usage amounted to knowledge,) what agreement was made between the plaintiff and said express companies. But that there was no intended fraud on the part of the plaintiff, nor any intentional concealment or suppression of such knowledge from the said defendants.
    V. That the said goods suffered loss while being carried in a flat boat, up the Chagres river, by being saturated with water while being transported in said flat boat.
    That such water entered and came within said flat boat, by reason of the leaking thereof, during such transportation of the said goods. That the aforesaid damage to the said goods was not caused, nor was any part thereof caused, by rain or spray.
    YI. That the said loss to the goods amounted to twelve hundred and thirty-seven dollars and twelve cents; that proof of such loss was duly made on the 19th day of March, A. D. 1852; and that if said loss is payable, interest is also payable upon the same, from the 19th day of April, A. D. 1852.
    And the said Justice thereupon decided, that his conclusions of law upon the facts so found were,'that the defendants were not discharged from their contract, by reason of the terms of the agreements made between the plaintiff apd the said express companies hereinbefore set forth.
    There being no evidence whatever of the occurrence of any violent storm, or of any extraordinary peril, or of the encountering of any perils which could have caused the leaking of the flat boats on which the goods were damaged, the presumption is, that such flat boats were unseaworthy at the time the said goods were put on board of them.
    That the loss sustained by the plaintiff resulted from the unseaworthiness of the flat boats in which the goods were transported on the Chagres river, and not from any of the perils insured against.
    That the defendants are entitled to a judgment against the plaintiff for their costs of this action,

      To this finding and decision, exceptions on the part of the plaintiff were duly filed. The receipts, given by the express company, are omitted, as not bearing on the questions decided, on the appeal.

      F. B. Cutting for the plaintiff.
    On the point, that there was no warranty, express or implied, of the seaworthiness of the flat boats on the Ohagres river, cited 24 Eng. L. & Eq. R. 16; 33 id. 325; 34 id. 266, 278; 4 House of Lords’ Cases, 353.; 16 Queen’s B. R. 161; and other cases. And to show that the defendants were responsible for the loss, even if occasioned by the condition of the flat boat or the misconduct of those who had charge of her, he cited 5 Mees. & Welsb. 415; 8 id. 895; 14 id. 476; 20 Ohio, 199, and other cases.

      W. C. Noyes for the defendant.
    To show that, if the goods were not injured by the perils of the sea, but by the leakiness and unseaworthiness of the flat boat on the Chagres, the defendants were not liable, cited 2d Arnould on Ins. 757, 774; 3 Kent’s Comm. 300; 1 Phillips on Ins. (2d Ed.) 675-678, 686-688.
   April 11th, the Judges delivered their opinion, seriatim.

Bosworth, J.

The Judge before whom this action was tried, found as facts that, the goods insured were damaged while being carried in a flat boat up the Chagres river, by being saturated with water while being transported in said flat boat.

That such water entered and came within said flat boat, by reason of the leaking thereof, during such transportation of the goods. That such damage was not, nor was any part of it, caused by rain or spray.

The conclusion of the Judge, on these facts, in the absence of all evidence of any violent storm, or of any extraordinary peril, or of the encountering of any perils which could have caused the leaking of the flat boats on which the goods were damaged, was, that such flat boats were unseaworthy at the time the said goods were put on board of them. The latter conclusion is stated as a conclusion of law.

Whether the implied warranty of seaworthiness, with the usual consequences, attached to these boats, under the policy in question, is, perhaps, a debatable question.

But whether it did or not, I think, the conclusion stated; that they were actually unseaworthy, was one which followed, as a just legal inference, from the special facts on which it was based.

Arnould states the rule thus: “ Where a ship becomes so leaky or disabled as to be unable, to proceed on her voyage, soon after sailing on it, and this cannot be ascribed to any violent storm, or extraordinary peril of the seas, the fair and natural presumption is, that it arose from causes existing before her setting out on her voyage, and consequently that she was not seaworthy when she sailed. In such cases, therefore, it is incumbent on the assured to show that, at the time of her departure, she was in fact seaworthy, and that her inability has arisen from causes subsequent to the commencement of the voyage.” 1 Arnould, 686, and note 1. The cases there cited support, as I think, this proposition.

Perhaps it would have been more appropriate, to have found as a fact, that the boat was unseaworthy, when the goods were put on board of the boat, and also at the time, when the boat commenced its voyage.

But the special facts, on which this conclusion was founded, are stated. They furnished prima facie evidence of the truth of the conclusion, and cast on the assured the burthen of proving that the boat was seaworthy at the commencement of its voyage.

„ Whether the conclusion be found and stated as one of fact, without stating the special facts on which the general and more comprehensive one of unseaworthiness was based, or as is done here, the special facts are stated, and the presumption which, the law draws from them, be found as a conclusion of law, does not seem to be very material.

The water, in the boat, did not come there from rain or spray. The water, as is found to be the fact, came into the boat from its leaking. One of the packages was seen at Galloon on the Chagres River. It was then in the bottom of the boat half covered with water. That boat carried the goods some forty or fifty miles. All of these goods, according to the evidence, must have lain in the water a long time, to have been reduced to the condition, in which they were found to be, on reaching San Francisco.

It is, probably, a fair inference that there was great inattention on the part of the boatmen to the condition of the goods, while in their charge, and that but little if any thing was done, in the way of bailing the boat, to obviate the consequences,, to the goods, of its leaking.

It would seem that the goods, instead of being damaged by any peril insured against, were damaged through the inattention and negligence of the boatmen, and their failure to perform their duty properly.

Does the rule, that the assured warrants the seaworthiness of the vessel in which Ms goods are laden, apply to these boats?

At least three separate portions of the voyage, were to be traversed, by as many separate and different mediums of transportation, by water.

First.—“By steamer or steamers to Chagres.”

Second.—“ At and thence by the usual conveyances across the Isthmus.”—(A part of the transit across the Isthmus, at that time, was performed by taking goods up the Chagres River, in river boats. These were, then, the usual conveyances.)

Third.—“ And at and thence, by steamer or steamers to San Francisco.”

I think there was an implied warranty of the seaworthiness of each steamer, sailing from New York to Chagres, and carrying the goods in question, at the time she commenced her voyage from the former port. And, that there was the same warranty as to each steamer sailing from the Pacific side of the Isthmus to San Francisco, at the time her voyage was commenced.

The policy by its terms, is.“ to attach only to such risks as shall be approved by the company, and endorsed” on it. It is in effect, a distinct insurance for each voyage, each voyage consisting of three separate parts, through each of which the goods were to be carried by a new and distinct medium of transportation.

The endorsements, made on it of the three sMpments in question, under dates of Sept. 13th, Sept. 30th, and Nov. 2nd, 1850, specify the names of the steamers on which the goods are to be carried from New York to Chagres, but not those in wMch they were to be conveyed from the Pacific side of the Isthmus to San Francisco.

If there was no implied seaworthiness of the latter steamers at the time, they commenced their distinct and independent part of the voyage, there could be none which attached to any of “ the usual conveyances across the Isthmus.”

But if there was, then on principle it should be equally applicable to the vehicle of conveyance across the Isthmus, unless there is something in the terms of the policy, which forbids such an application of the rule.

But it is unnecessary to determine the question whether the assured warranted the seaworthiness of the steamers, which carried the goods on the Pacific,—The goods were not damaged while on board of such steamers. And determining that, this implied warranty did not attach to them, nor to the flat boats, would not, in my judgment, be decisive of the question before us.

By the terms of the policy, the goods in question, were insured against the enumerated perils, at and from Chagres, across the Isthmus, while being transported “ by the usual conveyances.”

The stipulation admits, that, the goods "were transported up the Chagres river, and across the Isthmus, by the usual conveyances, i. e., by the usual river boats, and were damaged on such boats.”

The Court has found that the boats, employed in carrying the goods in question, “ were the usual boats, and the usual means of conveyance employed in carrying goods up the said river, which had been shipped at New York,’on board of the steamers of the said Steamship Company, to be carried thence by the aforesaid route to San Francisco, California.” Even if it should be conceded that, inasmuch as the goods were sent across the Isthmus by the usual means of conveyance, the plaintiff should not be defeated of his action on the mere ground that the law will imply him to have warranted that the boats were in better condition, than that attributed to them by the fair import of the policy, it does not follow that, on the facts as found, the plaintiff is entitled to recover. It must be borne in mind that the goods were injured, “by being saturated with water while being transported in said flat boats.”

That such water entered and came within said flat boats, by reason of the leaking thereof during such transportation of the goods.” And that.no part of the damage to the goods was caused by rain or spray.

That there was “ no evidence whatever of the occurrence of any violent storm, or of any extraordinary peril, or of the encountering of any perils which could have caused the leaking of the flat boats,” and on this also found as an inference or conclusion of law, that the boats, at the time the goods were put on board of them, were unseaworthy, or, in other words, instead of being staunch and tight, were leaky, and that the goods lay in, and were saturated with water, in consequence of the leaky character of the boats, and that the loss sustained did not result “ from any of the perils insured against.”

The gravamen of the complaint is, that the goods became and were wet and damaged by sea water, occasioned by the perils of the seas, and the other perils in the said policy mentioned, and thereby insured against, but how otherwise, in particular, the plaintiff, for the want of information, cannot state more particularly.” These allegations are put at issue by the answer.

The plaintiff is not entitled to recover by merely proving a loss. He must show the occurrence of a peril insured against, and also give evidence that the loss was caused by it.—Coles v. Mar. Ins. Co., 3 Wash. C. C. 159, 161; Coffin v. Phoenix Ins. Co., 15 Pick. 291; Donnell v. Columbian Ins. Co., 2 Sum. 366-272.

When a loss arises from causes, which it is the duty of the carrier to prevent, or which he might have prevented, by the due exercise of reasonable and ordinary vigilance, the underwriter is discharged from liability.—2 Arnould, 774.

So where, the loss is not proximately caused by the perils of the sea, but is directly referable to the negligence or misconduct of the master, or other agents of the assured, not amounting to barratry, the underwriters are not liable.—Mathews v. the Howard Ins. Co., 1 Kern. 9; Genl. M. Ins. Co. v. Sherwood, 14 How. U. S. 352; 2 Arnould, 775, § 287.

These boats are about eight feet by twenty, and about a foot deep, and open at the top. Goods on the bottom are visible to the eye, and any one in charge of them, could not, but see the goods standing in the water which came into the boats, in consequence of their leaky condition.

I think it quite clear upon the uncontradicted evidence, and a just inference from the facts found, that these goods were' not damaged by any of the perils insured against, but by the leaky character of the boats, from the consequences of which, no proper efforts were made by the boatmen, to protect the goods. But, on the contrary, the boatmen, although knowing the goods were exposed to injury from standing in the water, left them thus exposed until they became so injured, that the damage, which has been proved, ensued:

We agree in the conclusion that the goods were not damaged by any of the perils insured against.

The judgment should, be affirmed.

Hoffman, J.

There are three questions arising in this cause. First.—Whether the defendants are discharged in consequence of the special agreement, made between the plaintiff, and the Express Companies ?

Second.—Whether they are discharged by reason of an implied warranty of seaworthiness in the boats, employed upon the Chagres River ?

Third.—Whether they are discharged, upon the facts found, for any other reason ?

I. The defendants knew that the goods were to be sent by the Express Companies. They were shipped as goods are usually shipped by such companies, and the receipts were, in the usual form given to shippers by that line. I am of opinion that, under such a state of facts, the insurers are chargeable with notice of the terms and stipulations usually made with such Express Companies, and that the conclusion of the Judge at special term upon this point was correct.

H. The second question has been treated as the important one in the cause. A point of the counsel of the plaintiff is, that there was no warranty on his part, express or implied, of the seaworthiness of the flat boats on Chagres River. A point of the defendants is, that the goods were injured by the leakiness and unseaworthiness of the boats, and that the defendants are not liable.

The learned Judge found, among his conclusions of law, that the presumption was, that the flat boats were unseaworthy at the time the goods were put on board of them. He deduces this result from facts which he states. He adds, “ that the loss sustained by the plaintiff resulted from the unseaworthiness. of the flat boats in which the goods were transported on the Chagres river, and not from any of the perils insured against.”

The finding of unseaworthiness would, perhaps, have been in a more appropriate place among the conclusions of fact.

Assuming that this fact is established by the evidence, the question is, was there an implied warranty as to the seaworthiness of the boats used on the river ? I cannot satisfy myself that the rules of law establish this.

Implied warranties in voyage policies are conditions precedent, so far as the assured engages for the seaworthiness of the vessel at the commencement of the voyage, when the policy attaches. They are peculiarly so when the policy attaches at the original port of departure. (Watson v. Clark, 1 Dow. P. C. 344; Ogden v. The Amer. Ins. Co., 15 Wendell, 532; 20 Ibid. 287; Phillips on Insurance, 699, and cases there cited.)

The reason upon which an implied warranty of seaworthiness is founded, is the supposition that the assured is aware of the condition of the ship. At her home port, that is, the port of her owner’s residence, this reason is entirely satisfactory. It is less forcible when the ship is in a foreign port, the assured living elsewhere. Yet the rule is equally absolute in this instance. It would be dangerous and subversive of the principle to allow such an exception. (Thompson v. Hopper, 34 L. & Eq. Rep. 275.)

It will be admitted that the reason of the rule is very slightly applicable when the insurance is upon goods. The assured has no control over the outfit of the vessel. He has no right to inspect her condition. Ho presumption of actual knowledge fairly arises. Yet, in this case also, the shipper is held to the implication of the warranty.

This must rest upon the ground that he has the right of selecting the vessel; that he may make general inquiries as to her fitness; and that the advantages of a fixed rule of commercial law prescribe, that he shall be treated as if he had actual -knowledge.

The reason of this rule is well expressed in Gibson v. Small, hereafter noticed. It was there urged by the counsel for the plaintiff in error, that the insurer of goods was by law subject to the warranty of seaworthiness, and that he was equally ignorant of, and had as little control over, the condition of the ship, as the owner who effected a time policy during a voyage.

The Chief Justice said: “ This is quite true, but I think capable of a very simple explanation. At the time when the warranty of seaworthiness was established, the insurer of goods, (who was not the owner of the ship) almost universally laded his goods on board a general ship. The shipowner, in such a case, was subject to a contract, implied by law, that the ship was 'tight, staunch, and strong, and in every way fitted for the voyage,’ or, in other words, seaworthy;’ and, in the event of damage occurring by reason of this contract not being complied with, the owner was responsible. The owner of goods proposing to insure, would, in order to render the premium as low as possible, naturally represent that the goods were loaded on such a ship; and his situation, when insured, would be, that he was protected, so far as regarded damage arising from unseaworthiness, by the contract of the owner, and as to damage arising from perils of the sea, operating upon a seaworthy ship, by the contract of the underwriter, and this at the lowest possible cost.”

But while the law is thus far definite and settled, the doctrine of an implied warranty is in many particulars modified and restricted.

Thus it is settled, that the implied warranty of seaworthiness does not extend to requiring the ship to be seaworthy throughout her voyage, nor at each successive port at which she is to touch in the course of her voyage. It is satisfied if she is seaworthy at the commencement of the voyage. I speak of seaworthiness in respect of the capacity and fitness of the .vessel physically. Other rules appear to prevail in'relation to the competency of a crew, or to what has been termed statutory seaworthiness, when the employment of a pilot has been prescribed.

Holdsworth v. Wise (1 Man. & Ryl. 673,) is a leading case. The vessel there was insured at and from Belfast, to a port or ports of loading in British America—during her stay there, and back to a port of discharge in the United Kingdoms, between Falmouth and Greenock, on the west side of England and Scotland, or any safe port in Ireland, to call at Cork for any orders. The insurance was against the perils of the sea. The vessel sailed from Belfast—loaded at St. Andrew’s in Hew Brunswick, and on her voyage thence to Valentia, in Ireland, was deserted by the crew, from the apprehension that she was sinking. She was leaky when she sailed from Hew Brunswick, making from eleven to twelve inches every two hours. She was taken in tow, and carried into Hew York. The point was made, that the policy included an implied warranty of seaworthiness in the ship, and good seamanship in the crew, at every port, from which she sailed in the course of the voyage; and as she was making eleven to twelve inches water, every two hours, at the time of her leaving Hew Brunswick, she was not seaworthy. The Court, after advisement, held unanimously, that the implied warranty did not extend to the ship being seaworthy at every port from which she might depart in the course of her voyage.

Mr. Justice Duer, in the fifteenth lecture of his Treatise on Insurance, yet unpublished, says:—“ The law may be considered settled both in England and this country, that so far as concerns the intrinsic qualities of the ship itself, as tight, staunch, and strong; its physical capacity, independent of crew, stores, or equipment; the implied warranty of seaworthiness refers exclusively to the commencement of the voyage, whatever may be its probable duration, and however numerous and various the risks that it embraces; and, consequently, if the warranty is then satisfied, there can be no subsequent breach. Thus restricted, the proposition is certainly true that there is no implied warranty that the ship shall continue seaworthy during the voyage.”

The learned author proceeds to discuss the subject of the duty incumbent upon shipowners and their agents, to make all reasonable repairs, to keep up the competency of the ship for her further progress, where defects are discovered, and the means of removing them are accessible.

It is sufficient to observe how important the distinction is, whether the assured is bound to give evidence (sufficient to raise a presumption at least) of seaworthiness at each intermediate point of a voyage, or whether the insurers are called upon to prove neglect of a duty, and the possession of the means to fulfil it. I understand the rule to be, that in cases of an implied warranty, the burthen is upon the assured to prove a compliance with it as a condition precedent to the attaching of the policy.

The decisions upon the question of warranty in time policies axe of importance upon this point.

The result of Gibson v. Small, (16 Queen’s Bench Rep. 141, 24th Eng. L. & Eq. Rep. 16; 3d House of Lords, Ca. 353; 3 Eng. L. & Eq. Rep., 299,) is thus stated by Earl Justice: “ The Court decided that the plea there was bad, seemingly on the ground, that if a ship insured on a time policy is at the commencement of the risk in an unknown sea, and in an unknown state, the owner does not warrant that it is in the state requisite for setting out on a voyage. To this extent all the Courts are bound.” (Thompson v. Hopper, 34 Eng. L. &. Eq. Rep. 270.)

This was the decision in Jenkins v. Heycock, (8 Moore’s Priv., Coun. Ca. 351,) where there was a time policy, and the vessel was seaworthy at the commencement of the risk, but became unseaworthy at an intermediate port. There was no continuing obligation.

And such was substantially the case of Capen v. The Washington Insurance Company, November 1853, in Massachusetts, The policy was made April 30; the risk to commence March 30, when the vessel was at sea. She came back to Boston in September, and was lost on a subsequent voyage. It was ruled that there was no implied warranty in the common acceptation of the term, either at the date of the policy, or the commencement of the risk, but only that the vessel was to be in existence as a vessel at the time of the commencement of the risk, capable of being made useful, if then in port, with proper repairs for navigation, and was seaworthy when she first sailed from port; or if at sea when the risk commenced, that she had sailed in a seaworthy condition, and was safe, so as to be a proper subject of insurance at the time the risk attached.

In Jones v. The Insurance Company, (2 Wallace, 278) Mr. Justice Grier limits the implied warranty in a time policy to a case in which it is shown, either that at the time the insurance commenced, the ship was in her original port of departure, and commenced her voyage in an unseaworthy condition, and so continued until the time of her loss; or that having come into a distant port, in a damaged condition, before or after the commencement of the risk, where she might and ought to be repaired, and the owner or his agents neglected to make such repairs, and the vessel was lost by a cause which may be attributed to the insufficiency of the ship. And Ogden v. American Insurance Company, (20 Wendell, 287) determines only that there is an implied warranty of seaworthiness at the commencement of the risk.

The English courts have, however, gone further, and entirely abolished the doctrine of an implied warranty in a time policy.

Lord Campbell and Mr. Justice Park had intimated an opinion in Small v. Gibson, that this was the rule. Lord St. Leonards, and some others, expressed their views to be that, in a time policy on an outward bound ship, about to sail from a port where the owner resides, there is an implied warranty of seaworthiness at the commencement.

In Jenkins v. Haycock, the Judicial Committee of the Privy Council stated their concurrence in the views of Lord Campbell; and in Thompson v. Hopper, and Fawcus v. Sarsfield, 34 L. & Eq. Rep. 270, 277; the Court of Queen’s Bench, (Earl dissenting,) declared the rule expressly, that there is no implied warranty of seaworthiness in any case in a time policy; and this, whether the ship at the commencement of the risk, be at sea on her voyage, or be, at the date of the policy, in a port, about to sail on a voyage, where there are means of making her seaworthy.

These important cases show, not only that the Courts are reluctant to extend the doctrine of implied warranty, but, also that, where there had been no trace previously of a distinction between time and voyage policies, they first denied the existence of the doctrine in the former, except possibly, at the commencement of the voyage and at a home port, and then discarded it altogether. They show again, that the underlying principle of the first class of these decisions (now sustained by nearly the whole judicial strength of England) is the fact, that the owner has not knowledge of the state of the vessel, nor control over her. And the repugnance to the extension of the doctrine is strikingly manifested when we find, that when the reason ceases, (as, in relation to a home port it does,) the rule as to voyage policies is rejected.

But the Judges take care to guard this proposition with another; that misrepresentation or concealment will still have its full effect in absolving the underwriters from the contract. The Insurers are protected whenever there is any fraudulent representation or concealment. They may make inquiries, and introduce an express warranty, and they may always insist on a premium adequate to the risk which they will incur.” Lord Campbell in Thompson v. Hopper.

The present case exhibits circumstances quite peculiar and new, 'as far as I have examined the subject. The risks were separate and distinct. They were so, not merely as variations of risks of the same character, at different stages of one continuous voyage, in one vessel; but were risks of a somewhat different nature, on successive transportations of goods, by different modes of conveyance.

The first stage (not of a voyage, but of the transportation) was by a steamer from the port of the shipper to Chagres. The implied warranty may fully apply here.

The next stage was “ at Chagres, and thence by the usual conveyances across the Isthmus.” The last was “ at and thence by steamer or steamers to San Francisco.”

In the second portion of the conveyance, no boat or vessel is named; none could be named. There is not even a general description or classification of the nature of the conveyances. Usual modes of conveyance must be assumed to have been equally well known to both parties. Is there an instance of the transfer of such a warranty from the original ship to lighters, or to any other vessel into which, upon an accident, the goods might be removed?

Beyond a doubt, the course of modern decisions is to check and restrict the theory of an implied warranty. It appears to me that the present case is one without a precedent; and I do not see that it is fairly within any principle which has been allowed to govern in the cases upon the subject.

Had the case turned (as it was mainly argued) upon this question only, I should have felt by no means convinced that there was an implied warranty of the boats on the river.

III. But, on the assumption that there was no implied warranty of the seaworthiness or entire sufficiency of the boats, there is another point in the case which will determine the question of liability of the defendants. The loss arose from water breaking into the flat boats, saturating the boxes, it being suffered to remain without being pumped out, and the gross negligence and inattention of the crew of the boat in not doing their duty. Add to this the fact of the boats being leaky when the goods were shipped, and we have all the causes of the damage. It is found, that there was no evidence of the occurrence of any storm, or of any extraordinary peril, or of the encountering of any perils, which could have caused the leakage of the boats.

The neglect and fault of the owners of the boats, when they took the packages on board, and the culpable neglect of the crew during the transit, form the essential causes of the loss.

The causes are not literally within any of the perils insured against. The general words, “all other perils, losses,” &c., in the most extensive sense, would only cover perils of the same character. Thus, a peril of the river, from a tempest, would be equivalent to a peril of the sea. (Moses v. The Mutual Ins. Co., 1 Duer, 172; 1 Phillips, 1126.)

It may now be assumed as incontestable law, that while the occurrence of a peril, actually insured against, renders the underwriters liable, though traceable to the neglect of the master and crew, yet they are not answerable for any loss, not within enumerated perils, occasioned by such neglect. (General M. Ins. Co. v. Sherwood., 14 Howard’s U. S. Rep. 352; Philips on Insurance, Art. 1057, 4th Ed.; Moses v. The Mutual Ins. Co., ut supra.

The contract with the express company exempts the latter from liability for any loss or damage “ from perils of the seas, river navigation, leakage, fire, or from any cause whatever, unless the same be proved to have occurred from the fraud or gross negligence of the principal, the agents, or servants of the line.”

Therefore, if the agents were guilty of gross negligence in putting the goods on board of a boat known to them to be insufficient, or which slight attention would show them to be so, an action would lie against them.

And, on the case as made, the owners of the boats on the river would be responsible. The fact, that such a redress may be hopeless, cannot affect the bearing of the fact of such a legal liability of owners. (Blackstock v. The Erie R. R. Co., April Term, 1857.)

The assured and assurers entered into the contract in the policy with the knowledge that the responsibility of common carriers was, as to the Express company, thus restricted. We have held that this is not enough to discharge the insurers from liability on that ground alone, viz., their inability to avail themselves of recourse by subrogation to the Express company as carriers. It is equally clear, that this fact is not to operate to impose any responsibility upon them beyond their contract.

For these reasons, I consider that the insurers are not responsible for the loss for which the action is brought, and that the judgment should be affirmed.