author: By the Court. Woodruff, J.—

text:
    James B. Brady, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellants.
    The charter of the City of New York, as amended April 12, 1853, requires that "all " work involving the expenditure of more than $250, shall be done by contract on sealed bids, and that all such contracts when given, shall be given to the lowest bidder. A contract entered into by the officers of the Corporation in violation of this provision, is illegal and void, and imposes no obligation on the city.
    Although bids arc advertised for, and received, yet, if they are tested by a comparison which brings into view only a part of the work contracted for, and by such means the contract is awarded to one who was not in fact the lowest bidder, the contract is invalid.
    When the officers of the Corporation called for bids for flagging a sidewalk and laying a curb and gutter, and the making of excavation of earth and rock, if any, and stated that the lowness of the bids would be tested only by the price at which the bidders offered to lay the flagging, and curb, and gutter; held, that a contract awarded upon such a test, when it was impossible to determine by such test who was the lowest bidder, was void in respect to the excavation.
    Where the contract under which the work is done, is void, because entered into in violation of the charter, the contractor cannot recover for the work in any form —neither under the contract nor as upon a quantum meruit.

    A subsequent ratification of the contract by the Common Council, whether before or after the work is done, does not make it binding on the Corporation,
    Where the officers of a corporation do an act in excess of the corporate power, the Corporation is not bound, and when the statute under which the Corporation acts restricts its action to a particular mode, none of the agents through whom the Corporation acts can bind it in any other than the mode prescribed.
    The officers of the Corporation cannot, therefore, in such a case, bind the Corporation by accepting the work, or confirming an assessment to pay the expense thereof.
    Those who deal with a corporation, the mode of whose action is thus limited, must take notice of the restriction in its charter, and see to it, that the contracts on which they rely, are entered into in the manner authorized by the charter.
    (Before Duer, Ch. J„ and Woodruff, J.)
    Heard, October, 1857
    ; decided, November 28th, 1857.
    .This action comes before the Court at General Term, on an appeal by the defendants from a judgment entered against them on the report of a referee.
    The action is brought upon an alleged special contract, which the complaint avers was entered into with the plaintiff by the defendants through James Eurey, their street commissioner, on the 11th of August, 1854, whereby the plaintiff agreed to set the curb and gutter, and to flag a portion of Eighty-third street, (i. e., from the Third Avenue to Avenue A,) in the City of New York, in accordance with certain specifications annexed to the contract; and the defendants agreed to pay for the work, labor and materials the following prices, viz.: for setting curb and gutter stones, forty-five cents per running foot; for flagging, eleven cents per square foot; for removing rock, twenty-five dollars per cubic yard of rock removed. The amount to be paid upon the confirmation of an assessment for the work. That the work has been performed, and approved and accepted, and an assessment has been made for the work, and confirmed by the defendants in Common Council convened, and the entire contract-price is due and payable. The quantities of the respective kinds of work are then stated and averred to have -been necessary to the performance of the contract, and, in fact, performed at the request of the defendants, and of their surveyor having charge of the work, as-follows:— .4,046 ft. 6 in. of curb and gutter,, at 45 cts. . . $1,820.92
    15,686 ft. of flagging, at 11 cts. .. . . 1,725.46
    943 yards of rock, excavated, etc., at $25, . . 23,575.00
    $27,121.38
    That the defendants have made payment of 70 per
    cent, of the amount due, . . . . 18,985.27
    But refuse to pay the remaining balance, amounting to $8,136.11 Which balance the plaintiff claims to recover, with costs.

      The answer of the defendants sets out a resolution of the Common Council of the 8th day of June, 1854, ordering the setting of curb and gutter, and the flagging of the street referred to, under the directions of the street commissioner, and avers, that the street commissioner issued proposals, inviting offers or bids for the work, which proposals are annexed to the answer; in response to which four offers were received, the offer of the plaintiff being one. That, excluding from the offers the item of rock excavation, the offer of one J. Hodgkins was the lowest. That only two of the offers included rock excavation, viz., the offer of the plaintiff and that of one McCabe; and that McCabe offered to make the rock excavation at $5 per cubic yard ; and that, in fact, McCabe was the low.est bidder for the whole work, including the actual rock excavation in the calculation.
    That the rock excavation was the most important item in the entire work provided for in the proposals and contract; but the defendants deny, that the plaintiff excavated the quantity of rock claimed for.
    The answer then sets up the provisions of the amendment to the charter of the city, passed April the 12th, 1858, requiring, that “ all work, involving an expenditure of more than $250, shall be done by contract, on sealed bids, and that all such contracts shall, when given, be given to the lowest bidder;” the general ordinance of the Corporation providing, that no expense shall be incurred by any of the departments or officers thereof, unless an appropriation should have been previously made concerning such expense; and denies, that any such appropriation has been made for the expense of the work in question.
    Also, a general ordinance of the Corporation, requiring, that the “ proposals for estimates or bids shall contain and state the nature and extent, as near as possible, of the work required.
    The answer then avers, that a contract was made by the street commissioner with the plaintiff, by James Eurey, (claiming to be authorized, under the said resolution, proposals and estimates, or bids,) to which the answer refers, and which is averred to be the contract mentioned in the complaint; and denying all allegations not admitted, the defendants demand that the complaint be dismissed, etc.
    By consent of the parties, the action was referred to a sole referee, to hear and determine the same, and all the issues therein. The referee found the following facts:—
    “ First. That the defendants, on the 8th day of June, 1854, duly passed the resolution mentioned in the answer of the defendants.
    “ Second. "That; on the 27th day of July, 1854, the street commissioner published the proposal for offers or bids, also mentioned in the answer."
    This notice (or “proposal”) invited offers from persons proposing to perform the work, and described the curb and gutter and the flagging required, the kinds of stone, and the manner of cutting and laying. It stated, that “the street is to be brought to the grade shown on the profiles in the street commissioner’s office; the sidewalks to be regulated with sufficient rise from the curbstones, and the carriage-way to be properly shaped, under the direction of the surveyor;” that “the portions of the sidewalk, on which the flagging is to be laid, shall be levelled to a grade of six inches below the top of the flags, and the intermediate space filled with sand or gravel, and the residue of the sidewalk graded even with the tops of the flags.
    It directed that estimators should state, in- their proposals, the price per running foot for furnishing and setting curb and gutter stones, including regulating and removing or furnishing earth; the price per square foot for flagging, including the regulating of the sidewalks, and furnishing sand or gravel; also the removal of all surplus material or rubbish, after the completion of the work;' and the price per cubic yard for removing rock, if any should be - found.
    And the notice then further continued; “The following is the estimate of work and materials, by which the bids will be tested; viz.: 8840 running feet' of- curb and gutter stone, and 15,600 , square feet of flagging.”
    After some other particulars, not deemed ' material" to be stated, the notice further-states, that a strict compliance with the provisions of Title III., of contracts for supplies and work for - the Corporation, of the amended ordinances, passed- May 30th, 1849, and also as amended October 25th, 1849, will be observed and required in all cases.
    The referee found—

      “ Third. That the lowest bidder upon the data given in such proposals (or notice inviting offers) could not be ascertained.

      “Fourth. That the contract for said work was awarded by the street commissioner to the plaintiff, as set forth in the case, on the 11th of August, 1854, This contract is, in substance, as alleged in the complaint.

      “Fifth. That the work was completed in the autumn of 1854.
    “ Sixth. That seventy per cent, of the contract price was paid to the plaintiff by the defendants.
    “ Seventh. That 943 cubic - yards of rock were removed by the pliantiff in doing the work,
    “ Eighth. That the assessment list for said work was confirmed by the Common Council, by a resolution passed on the ninth day of August, 1856.” This assessment list showed that the amount due to the plaintiff, as the contract price of the work, together with the incidental expenses connected with the work, and the surveyor’s, assessor’s and collector’s fees, was $28,746, of which the sum of $23,575 (being 943 yards at $25) was for rock excavation, as alleged in the complaint. It assessed $5,093.15, upon the owners of lots along the line of the street, and left $23,653.85, to be paid by the Corporation of the City of New York.

      “Ninth. That the surveyor’s return and inspector’s certificate, were made and filed.” The surveyor’s return showing the number of yards of rock to be 943, and the inspector’s certificate certifying that the curb, and gutter, and flagging was finished according to the contract.

      “Tenth, and finally. That there is due to the plaintiff, from the defendants, the sum of $8,566.24, principal and interest, for work performed by him for the defendants.”
    The referee’s conclusions of law upon the facts found by him are stated in the opinion of the Court. From the judgment entered upon the report of the referee the defendants appeal.

      A. N. Lawrence, Jr., for the defendants, (appellants,) cited:—

      Smith v. The Mayor, etc., (4 Sandf, S. C. Rep, 241;) Boon v. The City of Utica, (2 Barb. S. C. Rep. 104;) Pierpont v. Barnard, (5 Id. 375 ;) Christopher v. The Mayor, etc., (13 Id. 667;) De Baum v. The Mayor, etc., (16 Id. 392;) Hodges v, City of

      Buffalo, (2 Denio, 110;) McCullough v. Moss, (5 Id. 567;) Head v. The Prov. Ins. Co., (2 Cranch, 127;) Dartmouth College v. Woodward, (4 Wheat. 636;) Bank of the U. S. v. Dandridge, (12 Id. 64;) Bank of Augusta v. Earl, (13 Pet. R. 587;) The Penn. Del. & M. Nav. Co. v. Dandridge, (8 Gill & Johns. R. 248;) Homersham v. Wolverhampton Water Works Co., (4 Eng. L. & Eq. R. 426;) Williams v. Chester & Holyhead R. R. Co., (5 Id. 497;) Cope v. The Thames, Haven, etc. Co., (3 Excheq. Rep. 341;) East Anglian R. R. Co. v. Pastern R. R. Co., (7 Eng. L. & Eq. R. 505; (McGregor v. Deal & Dover R. R. Co., (16 Id. 180.)
    A. J. Willard, for the plaintiff, (respondent,) cited:—

      Lohman v. The N. Y. & Erie R. R. Co., (2 Sandf. S. C. R. 39 ;) Devlin v. The Mayor, (4 Duer, Rep. 337;) Trustees of St. Mary's Ch. v. Caggar, (6 Barb. 576;) Russell v. Cooke, (3 Hill Rep. 504;) Stewart v. Ahrenfeldt, (4 Denio, 189.)
   By the Court. Woodruff, J.—

The referee has found, as a conclusion of law from the facts proved, that it was the duty of the street commissioner, (in his notice inviting proposals for the work directed to be done by the Common Council) to state the probable amount of rock excavation required, and to include that among the data by which the bids or proposals would be tested, and had no power, after excluding that part of the work from such data, to still go on and contract for its performance; and that the contract, made by the street commissioner with the plaintiff, was illegal and void as regards rock excavation; and that the plaintiff cannot, by virtue of his contract, recover the stipulated price for rock excavation.

These conclusions are obviously fatal to the plaintiff’s claim to recover, as such claim is alleged in his complaint.' He has alleged a special contract, and the performance thereof, and claims to recover the stipulated price. The contract proved is found to be illegal and void, and it cannot, therefore, be the ground of recovery.

The referee, however, concludes that the plaintiff is entitled to recover the unpaid balance of the contract price, and upon several distinct grounds, viz.:—

That the plaintiff, having done the work, was entitled to receive what the work performed in making such rock excavation was reasonably worth; and that the defendants have legal power to pay for work, on the basis of a quantum meruit, though it was done without contract, or under an illegal and void contract.

That, notwithstanding the contract under which the work was done was illegal and void, the confirmation of the assessment, made to provide for the expense thereof, amounted to a valid agreement, by the defendants, that the plaintiff should be paid the contract price.

That such confirmation was, in legal effect, an accord, and that satisfaction should be enforced.

And finally, that the plaintiff’s claim was a disputed claim which the defendants had power to settle, and that their acts amount to a valid binding settlement, which the plaintiff is entitled to enforce.

It is obvious to observe, that there are no issues in this action adapted to raise' the questions, upon the consideration of which the referee has decided in favor of the plaintiff.

The ground of claim set forth in the complaint is, simply, a special contract made with the defendants, duly performed by the plaintiff and his work accepted.

But assuming that the state of the pleadings may be disregarded, and that the plaintiff could be permitted to claim payment as upon a quantum meruit, and might recover for the rock excavation what the work of making the same was reasonably worth; then, so far as the judgment proceeds upon this ground, it is subject to what we deem these fatal errors: The referee awards to the plaintiff the whole contract 'price, and disregarded such evidence, as appeared in the case, tending to show that the rock excavation was not worth twenty-five dollars per yard, (the contract price,) when,'in truth, proposals were made to do it at five dollars; and further, the referee refused to receive evidence, offered by the defendants of the actual value of the work, which evidence, so far as the plaintiff’s claim was a title to recover what the labor was reasonably worth, was clearly, we think, admissible. It was, perhaps, rejected under the idea that the contract itself fixed the value, by stipulating the price to be paid, and that the value so fixed is conclusive.

Where parties have, by a valid binding agreement, fixed the price to be paid for work and labor, such agreement is of course conclusive, and even though, by reason of departures from the strict terms of such an agreement, by mutual consent, the claimant finds it necessary to claim payment according to the fair value of his work, the agreement may still bind both, as to the rate of compensation, in particulars conforming to such agreement.

But this rule has no application to an agreement which is itself illegal and void. An illegal and void agreement no more bound the defendants to pay the price stipulated, if the work was done, than it bound them in any other aspect. If it was void, it could neither form the basis of recovery, nor bind the defendants to the measure of liability.

To hold this contract conclusive in respect of price, would be indirectly to sustain it in the very particular out of which the illegality arises. It was not a contract with the lowest bidder; and yet to hold it conclusive as to price, is to bind the Corporation to pay the highest price bidden, without any valid contract or legal consent to any price. The requirement, binding the Corporation to give contracts to the lowest bidder,, has especial reference to the price which they may become bound to pay, and the manner in which that price shall be ascertained; and to hold a contract not so awarded, conclusive on that point, is not only subversive of the law, but wholly inconsistent with the conclusion, that the contract is itself illegal.

If the plaintiff claimed the value of his work, he should have proved its value; and the defendants were at liberty to give such evidence, relevant to that point, as they might be able. If the instrument alleged to be a contract was entered into by the defendants’ officers, in a manner not authorized by law—in a manner in which they had no power to bind the Corporation—then the stipulations in that contract did not bind the defendants for any purpose.

And, once more, there was some evidence bearing on the value of rock excavation in the testimony, showing that one of the proposals offered the performance of that part of the work at five dollars per yard. It may be true, (doubtless it is,) that even this is much more than the fair value; but if so, the defendants were not permitted, on the trial, to prove it. How, it is obvious, that if this rate had been taken as the fair value, the plaintiff would not, upon the basis of a quantum, meruit, have been entitled to recover any thing. He had, upon this basis, been already overpaid.

We are, therefore, for these reasons, of opinion, that even if any claim, in the nature of an assumpsit for the value of the work, could be sustained, a new trial must be ordered.

The suggestion, that the confirmation of the assessment, laid upon the lands adjacent to the work, amounted to an agreement with the plaintiff, that he should be paid, appears to us unwarranted.

By the terms of the contract, which is held illegal and void, payment to the plaintiff was to be made on the confirmation of the assessment; and, had the contract been valid, such confirmation would have been material as respects him, because the time of payment was thereby made definite.

But, in every other aspect, the act of confirmation was, as respects the plaintiff, a purely ex parte proceeding, operating between the Corporation and those whose lands were to be charged, but, in no sense, constituting an agreement with the plaintiff; and, notwithstanding such confirmation, the inquiry, whether the plaintiff is entitled to be paid, is, we think, clearly open to investigation.

The remark of Mr. Justice Strong, in Brady v. The Mayor, etc., of Brooklyn, (1 Barb. Rep. 591,) that a resolution to add a sum in question to an assessment, was an acknowledgment of the debt, and a promise to pay it, if recognized at all, must be understood with reference to that particular case. There, a matter in dispute had been informally referred. The persons selected had reported a sum due: the mutual assent of the parties to the amount reported due, amounted to a statement of an account between the parties: the resolutions showed the defendants’ assent, and the Court say, that when also assented to by the plaintiff, the claim became valid, however informal the reference and the award thereon.

Aside from the peculiar circumstances of that case, we can see no propriety in calling a confirmation of the assessment an agreement with the plaintiff.

Such confirmation may be evidence that the work was done, and that the Corporation accepted it as performance of the contract, and an admission of the amount thereof, and that is all.

The same observations are applicable to the idea, that this confirmation was a valid accord. It has none of the elements of an accord ; there was no mutuality; and no consideration gives to it validity in this sense: it is simply, and only a recognition of the plaintiff’s right to payment, under his contract. As an admission that the money was payable, it. would be material to the plaintiff, as evidence, if, notwithstanding the illegality of the contract, the Corporation had power to bind themselves by mere admissions.

In regard to the argument, that the plaintiff’s claim was a disputed claim, which the defendants had power to settle, and that their acts amount to a binding settlement, we observe, first, that the facts, as found by the referee, in this case, lay no foundation for any such proposition. Nothing in the facts, as found, intimates that there was any' dispute or controversy on the subject prior to the commencement of this action. They show a confirmation of the assessment, a compliance by the plaintiff with the conditions of the special contract, and a part payment by the defendants of the stipulated price, and that is all.

' We find, it is true, in the case, some evidence that the plaintiff’s claim was the subject of inquiry and investigation,' by a committee of the Common .Council; but the finding of facts would not inform the Court, that any thing in the nature of a settlement of a disputed claim had taken place, upon which the plaintiff can rely, if he is not entitled to recover upon other grounds.

Nor, second, do we think the evidence showed such a settlement. The investigation, had before the committee, was, for the information of the defendants, and as a guide to the Common Council, in their action upon the" subject, not for the purpose of negotiation, nor did it result in negotiation or arrangement, inter partes. Whatever operation the confirmation by the Common Council, after that investigation, may have, as evidence of an acceptance or approval of the work, has been already noticed, and will be hereinafter further considered.

We have thus considered briefly the specific grounds, upon which the plaintiff claims to recover, notwithstanding the illegality of the contract, so far as they are distinguishable from the general ground, that the work being performed, accepted and approved by the defendants, they are bound to pay for it, whether there was a valid contract or not. -

This ground of claim, we think, is all that arises out of the performance of the work or the acts of the Common Council, in relation thereto; and, if it be sound, then the plaintiff was entitled to payment, either at the contract price, 'or according to the fair value of the work.

Before noticing further this general ground of claim, it is proper that we should say, that we concur fully with the referee in his conclusion, that the contract itself was illegal and void, and that the plaintiff could not, by virtue of the contract, recover the stipulated price for rock excavation.

And it is material to notice, that the invalidity of the contract results from the want of power to make a contract in the manner this was made, for the purposes for which it was made.

It was entirely competent to prescribe, in the charter of the city, the mode in which, and in which alone, contracts should be made. When the powers of a corporation are limited in the charter, the acts of its officers and agents, beyond the scope of those powers, do not bind the corporation. And when the mode, in which the powers of a corporation may be exercised, is specially restricted, the officers and agents may not bind the corporation in any other manner. As Welles, J., in The Farmers' Loan and Trust Company v. Carroll, (5 Barb. Rep. 649,) says: Where a corporation relies upon a grant of power from the Legislature to do an act, it is as much restricted to the mode prescribed by the statute for its exercise, as to the thing allowed to be done.”

Those who deal with a corporation, whose mode of dealing is prescribed in their charter, must take notice of such prescription, at their peril. In this case, the contract in question was not given to the lowest bidder.

The officers of the Corporation did not take proposals from those who offered to perform the work in a form in which it was possible to determine who was the lowest bidder.

The plaintiff, not only was bound to know this, but he had actual knowledge, that neither the invitation for bids, nor his offer connected therewith, could enable any one to say, who was the lowest bidder.

The ease is pot one, in which all the proper elements have been taken into view, in considering whose bid was the lowest, and in which the erroneous determination, by which .the work was awarded to the plaintiff, resulted from unforeseen circumstances developed in the progress of the work; as where, notwithstanding estimates made in good faith, the amounts or quantities were found .more or less than the estimates. But .it is a case, in which the great bulk of the work was laid entirely out of view, and the bids-tested by what has proved a small portion.of the labor stipulated for, when the residue of the work was deliberately, expressly and designedly excluded from the comparison.

Not only was the statute provision of the charter- violated, but the general ordinances of the city were disregarded.

We feel no hesitation in concurring that a contract, so made in violation of the charter, and of the general ordinances, was illegal and void; and imposed no obligation on the. Corporation of any kind in respect to its stipulations, whether as to price or other terms or conditions thereof.

We also observe, on the subject generally, that the Corporation of the city, in the matter of contracts of this description, are acting not simply as an individual acts, in respect to his private interests, nor as a private corporation acts in relation to its property or concerns. .They derive no property, and gain no corporate benefit from the improvement of streets, or other .public work. And whatever they may pay or contribute toward the expenses, (by reason of the great cost of the improvement, assessed upon the city at large,) they pay out of the public treasury, from moneys raised by taxation for public purposes.

They act as a public corporation in discharge of duties, and in the exercise of powers which they hold, as trusts, for the benefit not .of the Corporation as such, but for the citizens at large and for the public. . .

Not only so, they are trustees and agents in another sense;. the exercise of their powers, in matters such as are' included in this contract, proceeds upon the assumption of benefit to contiguous landowners, tobe secured through the agency of the Corporation, not at their own cost, but 'at the landowners’ expense. And that agency involves, further, the creation of alien upon the lands, and the enforcement of the rights of the landowners bound to contribute, as between themselves.

So that the defendants, as a private corporation, may be said to have no interest in the subject, but to act throughout as trustees and agents of the public and the landowners; and to be clothed with the requisite powers, only, for the benefit of such owners and the public.

Danger of abuses, under such circumstances, is to be regarded as the reason and ground of the restriction, which requires that contracts for work, etc., shall be given to the lowest bidder; to the end that the tax-payers, or those charged with the expenses, may not be unjustly or unduly burthened, while the benefits contemplated by the proposed contracts may be secured.

The question then recurs: Are the defendants liable for work done, the contract therefor being illegal and void, because entered into in violation of the charter ? And this question remains to be discussed in two aspects, in the present case. Are they liable to the plaintiff, as upon a quantum meruit, because the work has been performed and is accepted ? And have the Common Council power to waive the original defect in the plaintiff’s claim, and by their action affirm his title to recover, so as to give him a right of action, notwithstanding the requirements of the charter have not been complied with ?

The answers to these questions seem to us inevitable, and too obvious to allow of extended discussion. If either be answered affirmatively, the restrictions in the charter become practically null, and the officers and agents, through whom alone the Corporation can act, may disregard the statute, and in practice repeal it. This, to our minds, is the prominent objection to the plaintiff’s claim, and laying out of view every other objection above suggested to the recovery in this case, (except so far as they are connected with this consideration,) it seems to us fatal to the plaintiff’s case.

The Corporation can only act through its chosen officers and agents.

If those agents not only may pay for work and labor actually done without a compliance with the statute requisites, but are legally bound to such payment, then no contract is necessary, and the restrictions in the statute are a dead letter.

If those agents may dispense with a contract, then, and then only, can they confirm an illegal and void contract, and then, also, by an acceptance of the work and a confirmation of the contract by resolution, they repeal the statute pro hac vice.

The relation which the Corporation and its officers bear to the subject; the duties they owe to the public, and those upon whom the burthen is to fall, and the nature of the powers they possess, forbid us to concede any such force to their acts. By the charter the power is limited, and it is a familiar rule that corporations can only bind themselves by contracts they are expressly or impliedly authorized to make.

It may sometimes seem a hardship upon a contractor, that all compensation for work done, etc., should be denied him; but it should be remembered that he, no less than the officers of the corporation, when he deals in a matter expressly provided for in the charter, is bound to see to it that the charter is complied with. If he neglect this, or choose to take the hazard, he is a mere volunteer and suffers only what he ought to have anticipated. If the statute forbids the contract' which he has made, he knows it, or ought to know it, before he places his money or services at hazard.

The analogy, drawn from the obligation of an individual to pay for work which he. accepts, although there has been no previous contract for its performance, wholly fails to reach the present case. Here, neither the officers of the Corporation, nor the Corporation, by any of the agencies through which they act, have any power to create the obligation to pay for the work, except in the mode which is expressly prescribed in the charter; and the law never implies an obligation to do that which it forbids the party to agree to do.

And, for the like reason, the defendants cannot be treated as ratifying the unauthorized acts of its agents. The difficulty lies not merely in the want of original power in the agents to make the contract, but in the want of power in the Corporation itself to make the contract otherwise than in the mode prescribed by the charter. An individual, having power to make a contract, may ratify or affirm it, when made by one who, without authority, assumes to be his agent, but if the individual have himself no such power, he can no more bind himself, retro-actively, to its performanee, by affirmance or ratification, than he could have done so prospectively, in the first instance. The power to ratify ex vi termini implies a power to have made the contract, and the power to ratify in a particular mode, implies a power to have made the contract in that manner.

An express resolution directing the plaintiff to perform the work would not have been valid or have bound the defendants, and a resolution, in very terms, ratifying what is done by the officers of the Corporation in violation of the charter, can have no greater effect. (Boon v. The City of Utica, 2 Barb. R. 104; Blood v. Goodrich., 12 Wend. R. 525; Hodges v. The City of Buffalo, 2 Denio R. 110; McCullough v. Moss, 5 Denio R. 567.)

We have considered the case without noticing a further ground of objection to the validity of the plaintiff’s contract, and what was done in relation thereto, viz., that the general ordinances of the city were violated in making the contract, and that the subsequent acts of the Common Council in a particular case cannot be regarded as giving validity to an act in violation of those ordinances, and that those ordinances as effectually exclude the idea of a valid ratification of what was illegally done as if they were incorporated in the charter. In placing our opinion upon the grounds above stated, we do not design to express any opinion upon this ground of objection.

The case of Russ v. The Mayor, etc., (December Special Term, 1853,) and also the cases of Smith v. The Mayor, etc., (4 Sandford Rep. 221,) and Christopher, et al. v. The Mayor, etc., (13 Barbour Rep. 567,) may be profitably consulted in reference to the whole subject.

We are constrained to say that the judgment herein must be reversed, and a new trial ordered. Costs to abide the event.

Ordered accordingly.


source: Caselaw Access Project

author: By the Court. Bosworth, J.—

license: Public Domain

text:
    James L. Porter v. Wm. Lobach and John F. Schepeler.
    A firm is not liable for money, lent on the application of a person employed by them, without their knowledge or authority, and used by him for his own purposes, when there is no evidence that the loan was solicited in the firm’s name, or for its use, although at the time of the loan he was interested, in a particular department of their business, in the profits and losses of sales made to customers that he might procure and induce to purchase; especially when there is no evidence that he was held out as a partner, or was known, or supposed, to be interested as such in any of the business of such particular department.
    And although the lenders, (having dealings with such firm,) render an account, say in January, 1851, to such firm, charging that firm with the money so lent, in this form: “ our loan to Mr. Tripler, $1136.40and although the account is retained some six months, yet if no act has been done directly or indirectly affirming its accuracy, but, on the contrary, its accuracy was disputed in the following March and August, and when last disputed, the firm was requested, by the lenders, to allow the account to stand as it was until the return of such borrower from Europe, such account cannot be treated as a stated and settled account which such firm is not at liberty to dispute.
    A verdict should not be taken at the trial, for the plaintiff, subject to the opinion of the Court on the whole evidence, with a view to its decision of disputed questions of fact. But when that is done, and the Court at General Term, at the instance of counsel, hear the case on its merits, they will disregard the objection that a particular and material fact is unproved, when such objection was not taken at the trial, and some evidence in support of it was given, and the whole proceedings tend to show that it was understood at the trial that no such objection was relied on.
    (Before Bosworth and Hoffman, J.J.)
    Heard Nov. 13;
    decided Nov. 28, 1857.
    This action comes before the Court, on a verdict taken subject to its opinion at General Term, with power to the Court to render a judgment for such amount as it may deem the plaintiff entitled to, or to set aside the verdict, and order a dismissal of the complaint, or a judgment for the defendant. Either party to be at liberty to turn the case into a bill of exceptions. The verdict was taken, in form, in favor of the plaintiff, for $2000, being a larger amount than he claims to be entitled to recover.
    The plaintiff sues as assignee of William Burger & Co., to re cover a balance alleged to be due from the defendants, as partners, to Wm. Burger & Co., which demand the plaintiff has purchased. The claim bought by, and assigned to, the plaintiff, as restricted by stipulations made at the trial, consists of two items of debit, made by Wm. Burger & Co., to the defendants, viz.:—
    July 16, 1850, amount of draft on one Pablo Nigron, $338.16 31 Dec., 1850, proceeds of sale of goods, per “ Fredonia,” 1104.18
    Total,'$1442.34
    The defendants’ answer states, in substance, that, prior to the alleged sale and assignment to the plaintiff, (which was on the 30th of March, 1854,) the defendants had various mercantile transactions with Wm. Burger & Co., other than those referred to in the complaint, and that, as the result of the whole dealings, the latter firm, on the 1st of January, 1851, was a creditor of the defendants, to an amount not exceeding $300.20, to which sum, it is insisted, the recovery must be limited. It also alleges, that on or about the 1st of January, 1851, the defendants rendered an account current to Wm. Burger & Co., of all the said transactions between the two firms, showing the balance due from the defendants to Wm. Burger & Co. to be $3Q0.20. That this account was retained more than six months without any objection made thereto, whereby the said account became, and was “ admitted, settled, and allowed.’’
    So much of the answer as set up a claim against Wm.° Burger & Co., to be credited with enough to reduce their account to $300.20, was put at issue by a reply.
    The defendants having moved for a reference, the plaintiff, as a condition to the refusing of the motion, stipulated to admit the correctness of the account which had been rendered by the defendants, except two items on the debit side thereof, being—
    “1850.—June 8. Our loan to Mr. Tripler, $1136.40
    “ Sept. 16. One Spanish cloak, sold
    by Mr. Lobach,..... 106.112—106.00.”
    That stipulation, by its terms, declared, that it was not to prejudice the defendants’ right to insist that any of the credits in said account were properly credits against the two disputed items, if those two items should be disallowed to the defendants .on the trial. The objection to those two items was, that if they were ever had by any person, they were had by a Mr. Tripler, on his own account, and not on account of the firm of William Burger & Co., and that the said firm are in no way chargeable therefor.
    The account, which is admitted to be accurate, (except as to the above two items,) commences under date of the 7th of February, 1850, and the last item of debit to Wm. Burger & Co., except interest, and some charges on the business transacted for them, is December 2, 1850. The last item of credit, except interest, is December 20, 1850. The account is dated the 31st of December, 1850, and credits to Wm. Burger & Co., in the aggregate, $7077.39 and debits them, in the aggregate, with...... 6777.19
    showing a balance due Wm. Burger & Co., of . . . $300.20
    It appeared on the trial that the book-keeper of Wm. Burger & Co. had three interviews with the defendants, in relation to this account, in which the two items now in dispute were objected to, and the subjects of conversation. The first was in March, and the last in August, 1851. At the last interview, the defendants gave such book-keeper a check for $600, on another account between the parties, and asked him to let the account in question “ stand over as it was, until they could see Mr. Tripler.”
    The only evidence of any importance bearing upon the question, whether the $1136.40 was lent, and the cloak sold to Wm. Burger & Co., on the credit of that firm, or to Tripler alone, and on his credit, except such as is furnished by the account rendered, consists of the testimony of Tripler, who was examined on commission.
    The evidence of Tripler tends to show, that, during the year 1850, the firm of William Burger & Co. consisted of said Burger, and Geo. R. Hendrickson, and John E. Hall. That,'in addition to other business, which may, or may not have been its principal business, the firm, so far as the evidence discloses, transacted a business spoken of as the wholesale drug and commission business, and which was designated among the members of the firm as the “ Spanish Business.” It was the particular duty and employment of Tripler to attend to that.
    Tripler was to have twenty-five per cent, of the net profits of so much of that branch of the business as he might procure for the firm, and was to bear the like proportion of its losses.

      He was to be at liberty to draw at the rate of $1200 per annum, to cover his expenses, and the residue was to be retained by the firm, to meet his share of the losses, arising from the aforesaid part of the Spanish business.
    He applied to the defendants on the 8th of June, 1850, for a loan of $1136.40, and received their check for that amount, and also delivered to them $600, in money, or a check for that amount.
    The money borrowed he applied to his own use, and borrowed it without the knowledge of any member of the firm of William Burger & Co., and without any direct authority from them to do so.'
    He did not state to the defendants for what purpose he required the money, nor did they ask him.
    The Spanish cloak was ordered by him, and was designed for his personal use, and was so used. He gave no instructions to the defendants to whom they should charge it.
    The check, which the defendants gave to Triplet for the $1136.40, was not produced on the trial.

      John C. Dimmick, for plaintiff.

      J. Larocque, for defendants.
   By the Court. Bosworth, J.—

This action should not have been concluded, at the trial, by taking a verdict on the whole evidence, for the plaintiff, subject to the opinion of the Court at General Term, unless there are no material portions of it which conflict with each other, and the whole leaves no doubt, as to the facts established by it.

But, having heard the cause argued at length, on the case made, we shall proceed to dispose of it, in accordance with our views of the effect of the evidence given at the trial:—

It is obvious that Tripler was not a member of the firm of William Burger & Co., either as between himself and the persons composing it, or as to third persons.

It is not pretended that he held the relations, or had the rights of a partner, except as to the department of that firms’ business, called the “ Spanish Business.”

And his interest in that department was limited to such business as he “ might introduce and procure to the said firm."

There is no just ground for pretending, that he was held out to the world, as having, or was supposed by the defendants, to have any interest, in any part of the business of that department, or to be a partner in the firm of William Barger & Co.

It is clear, that the money borrowed was not applied to the use of the firm of William Burger & Co. There is no evidence that an application for the loan was made in the name of that firm, or that the defendants supposed, at the time, that it was solicited in behalf of that firm, or for its benefit.

The check lent was not produced at the trial, so as to show that it was not drawn to the order of Tripler. The charge, in the account rendered, is, in terms, “ our loan to Mr. Tripler."

The terms of this charge do not import a loan to the firm, or on its credit.

It is undoubtedly true, that if money is borrowed by one partner, in the name of the firm, in a manner and under circumstances justifying the lender in trusting to its credit, the firm will be liable, although the borrowing partner may apply it to his own use.

So when he borrows, without disclosing whether he borrows on his own account or that of the firm, and applies it to the use of the firm.

But when he borrows, without applying for the loan either in the name of the firm, or for its use, and applies the money to his individual purposes, and the loan is made by a check of the lender, and there is no proof that such check was not payable to the order of the borrowing partner, and there is no evidence that the loan was, at the time, charged to the firm, and the account, when rendered, describes that transaction as a loan to the person borrowing, the conclusion that the loan was solicited for the firm or made on its credit, is not warranted by such facts alone. (Jacques v. Marquand, 6 Cowen, 497; Church v. Sparrow & Goodsell., 5 Wend. 223; Whitaker v. Brown, 16 Wend. 505; Miller, et al. v. Manice, 6 Hill, 114, 119; Parsons on Mer. Law, 178 and 179, and note 7.)

If the question were to be submitted to a jury whether the money was borrowed in the name of the firm, or loaned by the defendants in an honest belief that it was desired for the firm’s use, it would be their duty, on the evidence before us, to find that it was not.

Tripler’s answer to the 13th cross-interrogatory is not very full. He was asked, “ whether the said loan was not made by you, from the defendants, on your own account, and for your own individual use and purposes,” etc. He answers, “ I have already stated that the amount was received by me in the form of a check, and the same applied to my own use.”

To the fourth direct interrogatory, he says, “ I do not think there was any particular mention made on whose account the money was loaned,” and in answer to the 22d cross-interrogatory, he says, “ I never gave to Messrs. Lobach & Schepeler any instructions, nor did they ever ask me for any, as to whom the money received by me, at this time, was to be charged."

He says the Spanish cloak was ordered by him in the winter of 1849. It is charged in the account rendered, under the date of September, 16th, 1850.

No presumption can be indulged that a cloak, ordered by a person, who was only known to be employed by a firm, and not known to be interested as a partner in any of its business, and who, in fact, on the most unfavorable view for the plaintiffs, was interested as such in a part of it only, bought it for the firm, or that it was sold on its credit.

The fact, that the defendants had dealings with Tripler, which must be presumed, on the evidence before us, to have been understood to have been had with him, individually, and on his personal credit alone, does not add to the strength of the defendants’ claim, as presented by the other evidence, to have the lent money treated as a loan to the firm of Wm. Burger & Co.

We think the two disputed items of debit must be rejected; and as the $600, credited on the 8th of June, was a part of the transaction, out of which the loan arose, that it should be allowed as a credit against the loan.. The difference between that item of credit and the aggregate of the two disputed items, being $642.40 Should be added to the balance of the account, as rendered, ........ 300.20

$942.60

And the plaintiff should have judgment, for and interest, unless the account, as rendered, is to be deemed a stated account, so as to conclude the parties, from questioning its accuracy.

There is no pretence for saying, that Wm. Burger & Co. gave any actual assent to the correctness of the account rendered. It is sought to conclude them, and the plaintiff, as their assignee, by the account, as if it had been actually settled and agreed to, on the ground, that Wm. Burger & Co. kept it, during a reasonable time, to examine it and object to it, and suffered such reasonable time to elapse, without making any objection to its accuracy. In Lockwood v. Thorne, (1 Kern. 170,) the plaintiffs, after receiving from the defendants an account, showing a balance due to the former, immediately drew for the amount of such balance, which was paid. Ho objection was made to the correctness of the account, until that action was brought, a period of about nine months. In Toland v. Sprague, (12 Peters, 300-334,) the party to. whom the account was rendered, showing a balance in his favor, demanded such balance.

In the case before us, there was no act of Wm. Burger & Co., directly or indirectly, affirming the correctness of the account.

On the contrary, as early as in the following March, and subsequently, as late as in the subsequent August, they disputed the accuracy of the account. There can be no pretence, that Wm. Burger & Co. had either ordered, or enjoyed the benefit of, either of those items. And, as we view the evidence, the conclusion is inadmissible, that the defendants believed, at the time, that either of them was furnished to that firm, or that they parted with either of them on its credit. The defendants did not claim, when objection was made to the accuracy of the accounts, that it was too late to take that ground, or that the account was to be treated as a stated and settled account; but, on the contrary, requested that it might be allowed to stand as it was, until the return of Tripler from Europe.

Under such circumstances, we do not think that Wm. Burger & Co. can be held, to have acquiesced in the account, so as to be bound by it, as a stated and settled account.

A supplemental point was made, during the argument, that the action would not lie, because no demand of payment, prior to the commencement of the suit, was alleged or proved. The complaint states that the defendants had received the moneys sought to be recovered, and that they were due and owing from the defendants, and that a payment of some moneys, on account, had been made, and claims the balance. Under the issues made, proof of such a demand, if deemed material, would have been admitted.'

The evidence of Russell, as to the interviews with the defendants, in respect to the account in question, and as to the payment, by the defendants, at the last interview, of the balance due to Burger & Co., on another account, and the defendants’ request that the account in question might “stand over as it was until they could see Mr. Triplet,” are sufficient evidence of a demand, when it is considered that the objection, that a demand of payment had not been made before suit brought, was not taken at the trial.

It is quite obvious, as we think, that the trial was conducted on the theory, that the only question was, whether the defendants should be allowed the two disputed items, as charges justly made against the firm of Wm. Burger & Co. And it is equally clear, that if the objection, now raised, had been started at the trial, Russell might have proved that he insisted the defendants should pay the balance which would be due, on striking out these items.

We think the plaintiff should have judgment on the verdict for $942.60, with interest from the 31st of March, 1851.

Judgment accordingly.


text:
    The Atlantic Mut. Ins. Co. v. Bird & Neilson.
    A pro-rata freight is due, only, when the owner of the goods elects to receive them at an intermediate port, and this election can only be made, when the master is able and willing to transport them to their place of destination.
    When the vessel is wholly disabled during the voyage, and no effort or offer is made by the master or shipowner to save the goods and forward them to their port of destination, their acceptance, by their owner, is compulsory, and no freight is demandable.
    Freight cannot be recovered upon the original contract, because it has not been performed, nor upon an implied contract, if the goods are accepted from the necessity of the case, and because the master and shipowner have ceased to make any efforts for their preservation; because, under such circumstances, the owner only takes up his own goods on finding them abandoned.

      An insurance company that insured the goods, and that has paid a total loss, on an abandonment by the owner and assured, having contracted with a third person to forward the goods to the port «of destination, for fifty per cent, of their net proceeds, who did so forward them, is entitled to recover half of such net proceeds, notwithstanding the shipowner, after such contract is made, claims freight on the part so saved, and directs such third person to retain such freight, or pay it to the shipowner’s agent.
    (Before Bosworth and Hoffman, J. J.)
    Heard, November 6th, and
    decided December 6th, 1857.
    The Atlantic Mutual Insurance Company are the plaintiffs in this action, and William H. Bird and John Neilson.are the defendants. It comes before the Court at General Term, on a case agreed upon by the parties, under and pursuant to § 372 of the Code, which cáse reads-as follows, viz.:—■
    “ Statement of Facts, on submission of controversy, pursuant to Section 372 of the Code of Procedure.
    “ Giffard & Sambour, of Gondives, shipped on board the brig Emeline 404,000 pounds of logwood, and consigned same to Henry Delafield & Co., of -New York City, the owners thereof.
    “bill of lading as follows:
    “ Shipped in good order and condition by Giffard & Sambour, of Gondives, upon the good ship or vessel Emeline, whereof, Bradbury Farnham is master, for this present voyage, and now riding at anchor in the Port of Gondives, and bound for New York, U. S., four hundred and four thousand pounds of logwood numbered as per margin, and are to be delivered in like good order and condition at the aforesaid Port of New York, all and every the dangers and accidents of the seas and navigation of whatever nature and kind excepted, unto Messrs. Henry Delafield & Co., or their assigns, he or they paying freight for the said goods as per charter party.
    “ In witness whereof, the master or purser of said ship or vessel hath affirmed five bills of lading, all of this tenor and date, one of which being accomplished, the other four to stand void.
    “ Dated in Gondives, this twelfth day of December, 1856.
    (Signed)
    Bradbury Farnham.
    “ The freight on said logwood was to be five and one-half dollars per ton, on its safe delivery in New York City, by said Earnham.
    “Bradbury Earnham, the captain, was one of the principal owners of said brig, the other owners were unknown to the plaintiffs, although they made diligent inquiry for them.
    “ Henry Delafield & Co. insured the logwood with the plaintiffs on the day of December, 1856, for the sum of $3494.
    “ The brig Emeline was wrecked, on or about the 18th day of January, 1857, on Wardell’s Beach, about 35 miles from New York City, her port of destination, and part of her cargo cast ashore. She went entirely to pieces, so that she could not then be identified, and all hands on board were lost.
    “ On the 27th day of January, 1857, the Sun Mutual Insurance Company, believing the logwood insured by them, entered into the following contract:
    “New York, January 27th, 1857.
    “ The undersigned hereby agree to deliver the cargo, that has been or will be saved from the brig Emeline, (lately wrecked on Wardell’s Beach, New Jersey,) in New York for fifty per cent, of the net proceeds of the said cargo, they (meaning Woolley) to bear all the expenses that have been or will be incurred in so doing.
    “ Witness—John" Neilsoh.
    (Signed,) . Jordan" Woolley.”
    Before this contract was made, the logwood had been piled on the beach by the agent of the Board of Underwriters.
    Under this contract, Woolley took possession of the logwood, sent it to New York, and consigned the same to the defendants, who received the same, by order of the Sun Mutual Insurance Company, the supposed owner. On its arrival, on or about March 21st, 1857, the said defendants took possession of, and sold the same, and received the money. Previously to this, and sometime during the month of February, 1857, the other owners of the brig, (Earnham being dead,) notified the defendants that the net freight-money on the logwood saved should be paid to Joseph Perkins, of New York, their agent; and that they were willing to pay fifty per cent, salvage on the same.
    Nothing further was done by the owners of the brig.

      The defendants sold the logwood for $1841.90, and received the money.
    On or about the 21st day of March, the plaintiffs ascertained that the logwood was insured by them. Henry Delafield & Co. duly abandoned the same to plaintiffs, who accepted the abandonment, and paid a total loss on the logwood.
    The defendants, upon being apprised of the ownership of the plaintiffs, acknowledged the same, and stated to them the terms of the contract made with the Sun Mutual Insurance Company, to which contract the plaintiffs assented.
    The plaintiffs were entirely ignorant, at that time, of any claim for freight, or any arrangement concerning it.
    The defendants received, from sale of the logwood, $1841 ■3%°ír; they paid for Custom House fees and ordinary charges $110 X%1,; leaving a balance in their hands of $1731.27.
    The plaintiffs demanded from defendants fifty per cent, of this last sum, or $865.64.
    The defendants alleged, that freight was due on 120 tons, 17 cwt., 2 qrs., 12 lbs., at the rate of five and a half dollars per ton, amounting to $664.85.
    The defendants deduct this sum from . . $1731.27
    Deduct........ 664.85
    Leaving a balance of ... 1066.42
    The defendants offer to pay the plaintiffs fifty per cent, of this sum, or $533.21.
    The plaintiffs deny that any freight money was earned, under the facts, and demand, from the defendants, $865.64.
    The question for the Court is, whether any freight was earned, and what judgment must be given on the facts.

      T. Scudder, for plaintiffs.
    I.—1. The contract between the shipper of the goods and shipowner was, that the latter should receive his freight money, on the safe delivery of the goods, in like good order and condition, at the port of New York. Such delivery, therefore, was a condition on which depended the right of the shipowner to the payment of his freight, and means the delivery of the entire cargo. (Davidson v.
      Guynne, 12 East. 881; Edwards v. Todd, 1 Scammon, 463; Dunnett v. Tomhagan, 3 Johns. 154; Phelps v. Williamson, 5 Sanf. 578.) 2. The goods were never delivered by the shipowner, but the contract was broken by his default. Freight money was thereby forfeited.
    IT.—1. The vessel was totally lost, so that the owners thereof could only earn their freight money by hiring another vessel, and sending the goods to their port of destination. (Kimbal v. Tucker, 10 Mass. 195.) 2. It nowhere appears that any other vessel was hired, or any act done, by the shipowners, toward sending the goods to their port of destination.
    m.—1. The contract, entered into with the Sun Mutual Insurance Co., and under which the defendants received the logwood and sold it, was not a contract for salvage; it was a simple contract, to bring goods,, then safe, (for they had been piled on the beach,) from one place to another. (Abbott on Shipping, p. 659.) 2. The defendants are liable to the plaintiffs, having received the money for goods acknowledged by them to belong to the plaintiffs. (Bates v. Stanton, 1 Duer, 79.) The defendants have no lien on the goods.
    IV. —1. Where goods are, compulsorily, thrown upon the owner, short of the port of destination, no freight is earned. (Smith v. Wilson, 8 East. 437; Hustin v. Union Ins. Co., 1 Wash Cir. R. 530; Callendar v. Ins. Co. of N. A., 5 Binn. 525; Abbott on Shipping, p. 525, n. 1.) If, within a reasonable time, the shipowner fail to come forward and send the goods to their port of destination, this should be evidence of his intention to abandon his freight money.
    V. —1. If goods are brought to their port of destination safely, by agency other than that of the shipowner, after they have been abandoned by him, no freight money is earned. (Dunnett v. Tomhagen, 3 Johns. 154.) 2. There was no voluntary acceptance of the goods by the plaintiffs short of the port of destination, and no freight money was earned. (Barker v. Cheviot, 2 Johns. 352; Scott v. Libby, 2 Johns. 336; Phelps v. Williamson, 5 Sandf. 578; Marine Insurance Co. v. Mutual Insurance Co., 9 Johns. 186.) The plaintiffs should have judgment for $865 64/100 with interest and cost.

      James C. Carter, for the defendants.

      Before proceeding to a statement of the particular questions which arise upon the agreed case, and of the defendants’ view of the law thereon, it is deemed important to lay down some of the well-established principles of commercial law respecting freight, and when, and to what extent, it is earned.
    If the contract of the shipowner be discharged by the carriage of the goods to the port of destination, whether this be done by the shipowner or his agent, full freight is earned.
    If the vessel be wrecked or disabled at a place short of the port of destination, it is the right and duty of the shipowner, and of the captain as his agent, either to repair and refit the same ship, or to procure a new one, and thus to forward the goods to the port of destination. And for these purposes, of course, the-shipowner has the right to retain the goods in his custody for a reasonable time.
    If the owner of the goods, therefore, insist upon taking possession of them at a place short of the port of destination without the assent of the shipowner, or of the master as his agent, who insists upon performing the contract, the owner of the goods must pay full freight.
    But if the owner of the goods desires to receive them at a place short of the port of destination, and the shipowner or master assent to it, then a pro-rata freight only is earned.
    It is believed, that thus much is so well settled to be the law, as scarcely to require a citation of authorities. The following, however, may be consulted. (Luke v. Lyde, 2 Burr, 882; Williams v. Smith, 2. Caines’, 21, per Thompson, J.; Robinson v. Marine Insurance Co., 2 John. 323; Smith v. Wright, 15 Barb. 51.)
    I. In bringing the logwood from the place of shipwreck to the City of New York, the port of destination, Jordan Woolley acted in one of four capacities. First. As the agent of the owners of the brig; or, secondly, as the agent of the owners of the cargo; or, thirdly, as the agent of both these parties; or, fourthly, as a salvor, under a contract with one or both the interests (those of freight and cargo) to receive a certain compensation in place of what the maritime law would have allowed to him.
    II. If he acted in the first capacity, it follows that the shipowner brought the cargo to the port of destination, and full freight is earned. That he did act in this capacity, is evidenced by the fact that the shipowner gave notice to the defendants, (who were acting under Woolley and as his agent,) that he looked to them, for his freight. This was a direct interposition, on the part of the shipowner, while he had a right to interpose, and an authority to Woolley to carry the cargo to New York, on certain terms. The silence of the defendants implies and constitutes an assent to the terms. But for this assent, the shipowner might, and probably would have taken the cargo into his own hands. The reasonable time for his doing so had not elapsed.
    III. If Woolley acted as the agent of the owners of the cargo, or of those to whom they had abandoned, which is the same thing, then the case stands thus: A vessel is shipwrecked, and the captain and all hands lost, leaving no agent of the shipowner present. The cargo is of such a nature, and in such a condition, as to be in no danger of loss or damage. Under these circumstances, the owner of the cargo takes possession of it, without giving notice to the shipowner, or calling upon him to complete his contract, by carrying the goods to the port of destination, and without even his knowledge. Such a taking, is clearly a taking of the cargo without the assent of the shipowner, short of the port of destination, and, of course, full freight is due. 1. Should it be deemed that the subsequent notice of the shipowner, to the defendants, to pay freight to him, was equivalent to an original assent on his part to the taking, the case then becomes one of a voluntary acceptance of the cargo, by the owner, at a place short of the port of destination, and a pro-rata freight is due. (See authorities above cited.) 2. It cannot be maintained that the acceptance of the cargo, under these circumstances, was involuntary. An acceptance cannot be involuntary, unless there is no alternative. To give it this character, it must appear, either that the carrier or his agent was present and declined to carry the cargo on, or that it was manifestly out of his power to do so; or that he was absent, and notice was given him to complete his contract, which he had failed to answer; or that he was absent, and the cargo was in such a perilous condition that no time for notice could be spared. Neither of these conditions existed in the present case.
    IY. If Woolley acted in the third of the above-mentioned capacities, i. e., as the agent of both parties, full, or at all events,
      pro rata freight was earned. 1. This agency for the owners of the cargo was prior to his agency for the carrier, and, as has been shown under the third point, the shipowner’s right to freight, whether full or pro rata, had not been divested at the time when the agency for the shipowner commenced. Under these circumstances, the agreement, if such there was, of Woolley with the shipowner, in respect to the freight, could in no manner prejudice the owners of the cargo. 2. But as the shipowner interposed while he had a right to interpose, as has been shown under the second point, and brought the freight to the port of destination, through his agent Woolley, his right to full freight cannot be impaired by the fact that Woolley also acted as the agent of the owners of the cargo.
    V. If Woolley acted in the last of the above mentioned capacities, i. e., as a salvor, under a special agreement with both parties in interest, full freight is earned. 1. It is entirely competent for a salvor to agree with one interest, that he will accept a specified compensation for his services. The effect would be, that the Court of Admiralty, instead of allowing him a compensation to be fixed by the Court, would award, as against the interest in question, the sum agreed upon; and if he can make this agreement with one interest, he may do the same thing with all. 2. We claim it as a principle of plain equity, that when a salvor brings cargo to the port of destination, freight is due to the shipowner from the owner of the cargo, if the owner accepts the goods. (Post v. Robertson, 1 John. 24.) 3. In such a case the value of the goods is .increased by the amount of the freight, and it is utterly immaterial to the owner of the cargo by whom the contract of carriage is performed. 5. To permit the owner of the goods, under such circumstances, to obtain them, free from the payment of freight, would be to throw the entire burden of a peril of the sea, which ought to be shared in common, upon one of the parties. 6. This view of the case is supported by eminent authority. The case of Lulce v. Lyde, before cited, is directly in point, and has steadily been recognized as a reliable authority, notwithstanding what was said of it by Livingston, J., in Post v. Robertson, (1 John. 24.) This latter case, nearly identical in its circumstances with the one at bar, in the aspect in which it is now being discussed, also contains a deliberate recognition of the principle now contended for. Thompson, J., in delivering judgment in this case, and with whom Kent, C. J., Spencer and Tompkins J. J., concurred, said, “ I am inclined to think that the plaintiffs are entitled to recover some freight, and that this ought to be in proportion to the amount of goods received; because the right to freight arises altogether from the acceptance, which causes an implied promise to pay. This was the rule adopted in the case of Luke v. Lyde. Nor can any thing be more consonant to principles of justice and equity.” The action failed in this instance, as in Cook v. Jennings, (7 D & E. Rep., 381,) because it was covenant on the charter party. It should have been assumpsit, on the implied promise. 7. If any should claim that the general rule were otherwise, still no one could reasonably insist that an exception ought not to be raised in cases, like the present, where the goods have been delivered at the port of destination in an entirely unharmed condition.
    VL Judgment should be for the plaintiffs for the sum of $533. 27 only; or, should the Court be of opinion that pro rata freight only was earned, then, for a small additional sum to be ascertained by reference, unless agreed upon.
   By the Court. Bosworth, J.—

According to the facts stated in the case, the defendants had no agency in forwarding the log-wood to New York. That was done by Woolley, and the defendants were his consignees and agents to receive and sell it. There was no communication between Woolley and the owners of the brig. It cannot be said, therefore, that Woolley was in any respect their agent.

The case, then, is reduced to a narrow compass. A vessel is wrecked, within thirty-five miles of her port of destination, a part of her cargo is washed ashore and piled on the beach, and all hands on board are lost. The owner and consignee of the cargo abandon it to the underwriters. The latter, on diligent inquiry, cannot discover any owner of the brig, and no owner, or part owner, nor any one in their behalf, presents himself either to protect the cargo, or to forward it to its port of destination.

Under such circumstances, the underwriters take charge of it, by contracting with a third person to deliver the cargo saved, at its port of original destination, at a specific compensation agreed upon between them. Under that contract it is so forwarded and sold.

If the shipowner is entitled to freight in such a case, then he is entitled to' freight in all cases, in which his vessel is disabled during her voyage, by the perils of the seas, from completing it, provided the cargo, or any part of it, ultimately reaches its port of destination through the intervention of its owners, although the carriers, from the moment of the wreck, give no care, either to the preservation of the cargo, or to forwarding it to the place at which their contract, as a condition to the right to demand any freight, required them to deliver it.

Such an intervention of the owners, at an intermediate point in the voyage, to secure so much of the cargo as they could save, cannot be said, justly, to be a voluntary acceptance of the cargo, at the place of the wreck.

There was no election to be made, except between the two alternatives of losing the whole, or saving, by their unaided efforts, such portion of the cargo as might be secured from the perils, to which the shipowner, for all practical purposes, had abandoned it.

There certainly was no acceptance, voluntary or otherwise, of the cargo, at the intermediate point, by the original consignees and owners. They abandoned to the plaintiffs, their insurers.

It would be a very forced construction to hold, that the efforts of the latter to save a part of the cargo, after they had paid, or had become liable to pay, a total loss, when it is considered that those efforts were made after a failure, upon diligent inquiry, to discover any owner of the vessel, and apparently after a total abandonment, by the shipowner, of the voyage, raise an implied promise to pay freight, because those efforts have resulted in conveying some of the cargo to the port of destination, and placing its proceeds in their possession.

Under such a state of facts, these proceeds belonged to them, as insurers of the cargo, after paying a total loss, and there was no lien for freight attached to that cargo. (Mar. Ins. Co. v. Unit. Ins. Co. 9 J. R. 186-191; Dunnett v. Tomhagen, 3 J. R. 154; Welch v. Hicks, 6 Cow. 504.)

In Dunnett v. Tomhagen, the Court say: “no freight was earned on the homeward voyage, because no part of the cargo was delivered by the ship.” In the case before us, no part of the cargo was delivered by the ship, or by any one acting in behalf of the master or shipowner, but it was delivered through the efforts of the underwriters, to whom it had been abandoned, and who were compelled, by necessity, to save what they could, or submit to a total loss.

The leading cases on this subject are examined in Abbott on Shipping, 5 Amer. Edition, 547, note 1; and in Angell on the Law of Carriers, § 399 to 414 inclusive.)

If it must be admitted that the rule, to be deduced from the earlier cases, and from foreign ordinances, is that stated by Kent, Justice, in Robinson v. The Marine Insurance do., (2 John. 322,) namely, that a pro-rata freight is always due where the owner accepts the goods at an intermediate port of necessity, whether the acceptance be voluntary or compulsory; we, nevertheless, are of the opinion, that this doctrine is completely overruled by the more recent decisions, both in our own Courts and in the Supreme Court of the United States. We regard the law as now settled, that a pro-rata freight is only due where the owner of the goods elects to receive them at the intermediate port, and that this election can only be made when the master is able and willing to transport them to their port of destination. When the vessel is wholly disabled, and no effort or offer is made by the master or shipowner to transport the goods to their final port, by any other conveyance, their acceptance by their owner is compulsory, and no freight whatever is demandable. The right to freight pro-rata itineris must arise out of some new contract between the freighter and master, either expressly made, or to be inferred from their conduct.

That the master cannot recover, upon the original contract, which he has not performed, but must sue, if at all, upon some new contract, implied or expressed, will be found to pervade all the cases.

Such a contract cannot be implied, if the owner accepts them only from the necessity of the case, because under such circumstances, he will only take up his own goods; and the Court will not be able to imply, that, by such an acceptance, he had any intention to waive the completion of the whole agreement.

The shipowners cannot, on any principle, be entitled to freight on the portion of logwood which was sold to pay the necessary expenses of recovering and securing the part saved. That was lost, as absolutely, and totally, as the portion which was drifted to sea, and could not be reclaimed.

The logwood saved, has not been in the possession of the shipowners, or of their agents, at any time since the wreck of the Emeline, and whatever claims they have, if any, upon the present plaintiffs for freight, they have no lien upon the moneys in the defendants’ hands, which can operate as an answer to any part of the plaintiffs’ action to recover the one-half of the net proceeds of the logwood sold. (Caze & Richard v. Baltimore Insurance Co., 7 Cranch. 358 ; 9 J. R. 191.)

The plaintiffs must have judgment for $835.64, and interest.