author: By the Court. Hoffman, J.

text:
    William Nelson and others v. Augustus Belmont.
    A vessel, bound from New Orleans to Havre, was struck by lightning and set on fire. Her cargo consisted of cotton chiefly, some staves, and eight kegs of specie. A passing Danish brig was induced to stay by her, while efforts were made to put out the fire. Holes were cut in the deck, and water poured down, but ineffectually, and they were stopped to stifle the flames. The next day, it was found necessary to put into a port of distress, and the hrig was engaged to accompany her, and the passengers and specie were removed to the brig. No bargain was made as to compensation. The two vessels arrived at Charleston, when the fire-engines of the city were employed. The vessel was filled with water, and sunk to the upper deck. After that, she was pumped out, and the cargo discharged. The captain, without advice, abandoned the voyage, and sold the cotton at Charleston, He made some slight repairs to the vessel, by his own carpenter there, and brought her to New York, where repairs to a large amount were put upon her.
    While in the harbor of Charleston, and before reaching the wharf, the captain obtained the specie from the Danish hrig, and deposited it in a hank.
    Certain sums were allowed to the captain of the Danish vessel, and to the fire-companies, under the sanction of the Chamber of Commerc'e in Charleston.
    Upon revising an adjustment of the general average, made in New York—

      Held, 1st. That the specie on hoard the Galena, and which was transferred to the Danish brig, was liable to contribute, in common with any other portion of the cargo, to whatever may he a proper subject of general average.
    2d. That the amount awarded to the Danish hrig, for her services in going into Charleston with the Galena, was to he allowed.
    3d. The amount awarded by the Chamber of Commerce to the fire-engine company was also proper.
    4th. The damage to the vessel, occasioned by cutting the holes in the deck, when at sea, to pour down the water—that is, the mere expense of repairing the deck . where these holes were cut, was to be allowed as a proper item for contribution.
    5th. The damage caused to the vessel by the swelling of the cargo—that is, the amount which can be distinctly shown it would cost to repair that specific damage, was also proper.
    6th. That any loss to the cargo, which it can he distinctly shown arose, exclusively, from damage done by the water, the cargo not being on fire at the time, was to he allowed.
    íth. The freight was improperly allowed by the adjusters. It is neither to he contributed for, nor to contribute.
    8th. As to the disbursements in Charleston, if any expenses were incurred by landing part of the cargo, in order to pnmp out the vessel, they may be allowed; and so any expenses attending loading, storing, <kc., incurred prior to the determination to abandon the-voyage. '

      9th. Only that part of the cargo should be contributed for, which can be shown to have been damaged, exclusively, by the water. The rest of the cargo is to be assumed to have been damaged by the fire, if not proven to have been damaged by the water, and is not to be allowed for.
    10th. The cargo is to contribute in the usual manner, including the amount allowed in general average.
    11th. That, as to the repairs in New York, a selection of the items must be made; or, if that is impossible, an estimate of the cost of repairing that damage to the vessel, which arose from the swelling of the cargo from the water poured down. The sum which it would have cost to do this, without any other repair whatever, is to be allowed, and that only.
    (Before Bosworth, Hoffman and Woodruff, J.J.)
    Heard, January, 1856;
    decided, February, 1856.
    The case came up for judgment upon a verdict for the plaintiff for $10,000, rendered before the Chief Justice'and a jury, subject to the opinion of the court at General Term. There was also a stipulation of the attorneys to the following effect: “It is agreed that a verdict herein be taken for $10,000, subject to the opinion of the court, and to be entered as a verdict for the defendant, on such opinion, for a like amount. In case the court shall adjudge the plaintiff to be entitled to a recovery on any principles, the cause shall be referred to a referee, with instructions, and subject to the order of a Judge, to ascertain the amount.
    “ Also, in case the court are of opinion that the plaintiffs are liable for any part of the defendant’s specie, the verdict shall be for such balance, to be ascertained as aforesaid.
    “Each party to be at liberty to make a bill of exceptions, presenting the questions decided by the court.”

      W. M. Mvarts, for the plaintiff.

      D. Lord, for the defendant.
   The facts and the points raised by the counsel, sufficiently appear in the opinion of the court.

By the Court. Hoffman, J.

The material facts of the case upon which the decision must rest, are these:—•

The ship Galena sailed from New Orleans, bound for Havre, in July, 1853. The cargo was chiefly cotton, with a few thousand staves, and eight kegs of specie, six of which were shipped by the defendant, and two by other persons. On Saturday the 23d July, the ship was struck by lightning between one and two o’clock. It struck the mizzen topgallant-mast, passed down the mizzen-mast into the cabin, and into the between-decks. In five minutes the ship was discovered to be on fire. Holes were cut in the upper deck, around the mizzen-mast, and water poured down into the between-decks, where the cargo was. This had no effect. The holes were then stopped up to stifle the fire. This was between three and four o’clock. The fire still continued. The mate was sent to a brig, the Anna Margaretta, in sight, and signals of distress were made. The brig was going the same course, and had been seen all .the morning from daylight. The mate went on board the brig, and returned about five P. M. It seems pretty clear that the fire began about one or two o’clock p. M., civil time, of the 23d. The passengers and baggage were transferred to the brig by ten or eleven at night. The captain of the brig was requested to keep company for the night, which he did. The holes of the ship were reopened, and water poured down all night. In the morning the deck was hot; the fire appeared to gain. At daylight the captain concluded that he could not put the fire out, and must make a port of distress. An arrangement was then made with the captain of the Danish brig, by which she was to accompany the Galena into Charleston, and to take the specie on board his vessel. This was done because he had the passengers on board, and as a protection to the crew, in case they had to leave the ship if the fire burst out. The specie was put on board the brig because it was safer there, as in case the fire broke out it might be too late to transfer it from the ship.

Captain Beesen, of the Danish brig, was told that he would probably get his pay as salvage, either by the court or by a settlement. There was no bargain or understanding as to the amount. Both vessels bore away for Charleston. The fire did not appear to decrease. At two o’clock of the 26th they hauled into the wharf. The engines of the city then commenced playing into the ship, and she sank to the upper deck. She was filled with water. The cotton absorbed a good deal of the water as it went down. The ship lay full of water twenty-four hours. After that she was pumped out, and they commenced discharging the cargo. The water poured in before the arrival may have touched fifty to seventy-five bales of the cotton; the water poured in at Charleston covered the whole of it.

The captain determined, in the exercise of his own judgment, and without advice, to abandon the voyage. He sold the cargo at Charleston, and remitted the funds. He made some slight repairs, but only what was done by his own carpenter, and brought the vessel to Hew York, where repairs to a large amount were made, as hereafter noticed.

While in the harbor of Charleston, and before reaching the wharf, the captain of the Galena got the specie from the Danish vessel and deposited it in bank.

The adjustment of the general average took place at Hew York. The statement annexed, A, is an analysis of such adjustment, the document having been furnished us. It shows that the losses contributed for amounted to $73,964.72. Of this sum, $5,120.37 were allowed the Danish brig; and $5,198 to the fire-engine companies at Charleston, both fixed by the Chamber of Commerce. The expenses at Charleston, $4,738.88, consisted of charges for discharging the cotton, piling it on the wharf, landing, storage and weighing, insurance and watching, commissions on the sales of cotton, wages and provisions. The aggregate of the sums allowed in general average of expenditures at Charleston, is $15,057.25. At Hew York repairs are allowed to the amount of $4,285.17. There is also allowed loss on cargo, by scuttling, $42,588.07; loss on freight, $8,880.05; on passage-money, $703.17; adjustment fees and commission for collecting the general average, make up the total amount of $73,964.72. The result is, that 45.09| per cent, is to be paid by all the contributory interests, to make good these losses. The specie represented by the defendant, ($30,853,) is made to pay $14,364.36. The residue of the specie, owned by Rousseau, ($9,110,) is to pay $4,108.23.

I. The proposition chiefly argued by the counsel of the defendant is, that-the specie transhipped into the Danish brig was not subject to the general average expense of the bearing away of the Galena to Charleston, nor the general average expenses, or losses, incurred there or at Hew York. That even admitting that the residue of the cargo, or the vessel, were liable for any other loss than the salvage paid to the Danish brig, the specie is exonerated from it. That it was separated from the vessel and residue of the cargo; no longer in a common peril; subject only to the peril attending the Danish brig, and hable only for a due proportion of the salvage awarded to that brig.

On that basis it will be seen that even if the whole of the salvage of $5,120, is borne by the whole of the specie, ($89,963,) there Would be only a percentage due of about 12? per cent., or about $3,933. This becomes, therefore, a very important point. As $4,364.36 has been paid, there would then be a balance to be recovered by the defendant, if he is right. .

The most analogous cases to the present, which I have found, are those relating to the placing of part of the goods of a ship on board of lighters or other vessels. The rules which have been applied in such cases, will, I think, afford a principle sufficient to govern this cause.

In the case of the ship Couronne de Rochelle, stated by Hagens, (vol. 1, p. 160, case ix.) the vessel sprung a leak, which the utmost exertions of the crew could not keep under. She had sailed with convoy, and after signalling the distress, the boats of several ships came alongside to lighten her, to search for the leak, and to stop it. These boats took from the ship sixty-eight casks of indigo, and one hogshead of white sugar. These were distributed among the different vessels, and after diligent search, the leak was found and stopped. About twenty of the casks of indigo, and the hogshead of sugar, were put on board vessels which were afterwards captured by the English. The ship arrived safe at Rochelle, to which port she was bound. The residue of the indigo was delivered safe in Erance by the vessels to which it was transferred.

The general average- was adjusted by allowing the invoice cost at St. Domingo, of the twenty casks of indigo—deducting ten per cent., a usual deduction for waste—the value of the hogshead of sugar, the freight of the indigo and sugar lost, the freight paid the other vessels for that delivered, and the expenses of adjustment.

The contributory interests were the residue of the cargo at the same valuation; the indigo and sugar, both that delivered and that captured; half of the value of the ship, appraised according to the condition she was in at the time of the average; and one half of the freight, including that of the indigo and sugar taken.

In comparing this leading case with the present, we find some points of material resemblance, and some of important difference. The goods which were taken on board the assisting vessels, and were saved, lost nothing of their character of goods, still following the fate of the vessel and residue of the cargo, and were as liable for any proper contribution as the goods which remained on board. So the goods which were transhipped and lost by the capture, retained their relation to the ship and other parts of the cargo, so that their loss was to be paid for in due proportions by such ship and cargo. The difference is, that the indigo and sugar were designedly transhipped, to enable the parties to get at the leak, and preserve the ship and cargo.

The foreign authorities declare that the loss of merchandise placed in boats to lighten a vessel entering a port or river, shall be shared by the vessel and her cargo. The goods are considered as if they had been thrown into the sea. Such authorities are cited by Emerigon. (Meredith’s ed., p. 474.)

But the rule is subject to qualification, where the vessel requires to be lightened in order to enter her port of destination. In the latter case, no contribution can be claimed. (Pothier des Avaries, N. 140; Beneclce, p. 206.) The captain and owners should have been aware of her draft, and of the water at the port. Emerigon states, also, another exception, viz., where the goods are put on board lighters, to be delivered to the owners or consignees.

The case of Beavan v. The Bank of the United States, (4 Wharton, 801,) has been chiefly relied upon by the counsel for the plaintiff. Notwithstanding that case, Mr. Phillips, in his last edition, (1854,) states the rule to be, that goods or any interest are not liable to contribution for any general average or expense incurred subsequently to their ceasing to be at risk. (vol. ii, p. 155.) He cites Dunham v. The Commercial Ins. Co., (15 Johnson, 315,) and proceeds to comment upon Beavan v. The United States Bank. He thinks that the specie, in that case, could not, upon principle, be distinguished from the case of part of a cargo delivered to a consignee, before the damage was incurred. In that case, specie, part of the cargo, was carried on the ice, and conveyed to Philadelphia by land. The vessel was ice-bound, and in imminent peril. Philadelphia was the port of destination. Considerable expenses had been incurred subsequent to the removal, from placing the cargo in lighters, reshipping it, and otherwise. For such expenses contribution was claimed of the specie.

Dunham v. The Commercial Insurance Company settled, that when, the cargo had arrived at its port of destination, and had been delivered, and freight earned, it could not be made to contribute for subsequent expenses and charges; such as the expenses for wages and provisions, while the vessel was in dock to repair the damage sustained on the voyage. Such expenses could not be considered as incurred for the benefit of freight or cargo.

Lewis v. Williams, in this court, (1 Hall’s Rep. 430,) establishes the rule, that where goods are placed in lighters, upon the vessel stranding in the harbor of her destined port, and some of them sustain a damage, this shall be allowed in general average as well as the expenses of the transportation. The vessel was got off, but, in proceeding up the bay, was again stranded, and lost. The contributory interests were the freight, and the cargo at the invoice prices. The vessel was not claimed for, nor brought in as a contributory interest.

We find, in this case, the principle, that as to the goods in the lighters, there continued a common interest and common liability. There was no severance of the connection, even although they were in progress of being delivered from a part of the harbor to the port of destination.

The Case of Whittridge v. Norris, (6 Mass. Rep. 125,) is carefully examined by both Chief Justice Jones, and Mr. Justice Oakley, and shown to be entirely consistent with their decision.

The attempt is made to treat this as a naked case of the salvage of the specie, for which it should bear its proper share of the amount awarded to the Danish ship, and that no part of the general average expenses ought to be charged to it.

The cases of salvage in behalf of a stranger are, in strictness, when the property is abandoned, or derelict, or the vessel has been recaptured. The salvor takes possession, which he has a right to retain, although the actual property of the owner is not divested. But to the extent of his lien, the salvor’s possession and right are absolute and exclusive. The mere temporary absence of the owner to obtain assistance does not destroy his exclusive right of possession. (The Bee, Ware’s Rep. 332; Lewis v. The Elizabeth, id. 41.)

If we attempt to separate the delivery of the specie from every other part of the transactions between the masters of the vessels, we shall find it very difficult to consider it as a case of salvage proper. There was the consent of the captain of the Galena that the other should have the temporary custody of the specie, for the better chance of preservation, with a right to reclaim possession, and the actual exercise of that right in the harbor of Charleston, by consent. The owner of the Danish vessel was content to look for his compensation to the judgment of a tribunal, or an adjustment by consent. The case has a close resemblance to the freight which, in the case from Hagens, was paid to the two ships which delivered portions of the cargo in safety.

But it is impossible to disconnect any one part of these arrangements and transactions from the other. The whole was one integral and indivisible transaction, growing out of one peril, and controlled by one contract.

The engagement of the Danish brig was for the common benefit. The transfer of the specie was like that of a transfer to a boat or tender alongside, for a temporary purpose.

It is undoubtedly true, that cases of remuneration are not limited to instances of derelict, abandonment, or capture. Services rendered to a vessel in peril, even in co-operation with the master and crew, form a just claim for it.

Thus, in the case of the Elvira, (1 Gilpin’s Reports, 67,) the extra services rendered by a pilot, beyond the mere sphere of his duty, were allowed for. The services were such “ as exalted a pilotage service into something of a salvage service.” The master and most of the crew remained on board. The same was held in the. case of the Wave, by Judge Betts, (1 Blatchford & Howland, 243.) See, also, the ship Henry Embank, (1 Sumner, 414.)

And in Allen v. The Ship Canada, (Bee’s Rep. 90,) a ship was in distress, and the captain of another vessel, at the earnest request of the master, kept company with her, hoisting a light at night, until she was in safety. Compensation was allowed, although the evidence was, that the danger was not imminent. It was not allowed as a strict case of salvage.

These cases justly fall within the observation of Mr. Flanders, that they are not properly matters of salvage, but of a remuneration, pro opere el labore. (Maritime Law, p. 324.)

Nor is it at all anomalous that a case of salvage should form part of a matter of general average, and enter, with other items proper to such a case, into the adjustment. Thus, in the case of the Vreede, (Hagens, 308, case xxv.) two anchors, which had been cut away in a storm, were recovered, and salvage paid for them. This amount went into the adjustment of a heavy case of general average.

The result appears to be, that the specie put on board the Danish brig, continued, as between its owners .and the owners of the Galena and her cargo, precisely as if it had remained on board the latter vessel. It may, indeed, be urged with much force, that had it been lost by the foundering of the Danish brig, it would have been a subject of contribution. But, at any rate, it was temporarily transferred; it was saved. The possession could have been resumed at any time during the voyage to Charleston. It was resumed in the harbor. It was deposited, no doubt at the control of the captain, in bank. It would have been reshipped, had the voyage been resumed. It was, in effect, as much connected with the ship and her voyage, as the rest of the cargo, until the abandonment. We think, therefore, it must contribute for such damages or expenses, being subjects of‘general average, as it would have been liable for had it been kept on board.

II. We proceed to consider which'of the items of general average, allowed .by the adjusters, were proper subjects for it.

And first, as to .the repairs. We conclude, after a careful examination of the adjustment, that a mere trifle, if any thing, was disbursed for repairs in Charleston. The holes, which were cut m the deck at sea, were, no doubt, filled up; and this expense may, perhaps, be a charge for a general average. We presume it too inconsiderable to deserve notice. But when the vessel came back to Hew York, very large expenditures were made upon her, and of those, the sum of $4,738.88, is charged to general average.

The captain states the damage done to the ship by the fire, viz., the burning of the beams of the upper and lower decks, the cabins, some set of knees, some of the timbers, and the mizzenmast between decks. The ship was also greatly injured, he states, by the swelling of the cargo, caused by the water. Ho repairs were done to the ship at Charleston, except what were performed by his own carpenter.

The claim cannot be presented in a stronger light than if the repairs had been made in Charleston.-

We have, then, this point presented: Are the repairs of a vessel, at a port of necessity, when the voyage is there broken up, and the cause of resort to that port was a peril purely fortuitous, subjects of contribution in general average ?

Mr. Abbott states the summary of the English decisions thus: (Ed. Boston, 1854, p. 632,) “It seems to result, that if a vessel goes into port in consequence of an injury, which is in itself the subject of a general average, such repairs as are absolutely necessary to enable her to prosecute her voyage, and the necessary expenses during the stay, are to be considered as general average.” See, also, Hull v. Jacobson, (29 En. L. and Eq. Rep. 116.)

Mr. Flanders, (Maritime Law, p. 268,) considers the English rule to be, that contribution is due for repairs absolutely necessary to enable the ship to perform her voyage.

In Paddelford v. Boardman, (4 Mass. Rep. 348,) it was decided that wages and provisions are to be allowed during a detention in a port of necessity, arising from stress of weather, but not the repairs of the ship.

In Williams v. Suffolk Ins. Co., (3 Sumner, 510,) Justice Story held, that the expenses of going into a port of necessity, to refit, could only be a general average, when the voyage has been resumed, or might have been; not, if it is abandoned from necessity.

In Meyers v. The Harriet, (Adm. Eastern Dist. Penn., July, 1848, cited Wheaton’s Digest, vol. 2, p. 48,) it was ruled, that the expenses and costs of the repairs of a vessel, in a port of necessity, do not constitute a case of general average against the cargo, where it is found impossible to proceed on the voyage, which is then broken up.

Walden v. Leroy, (2 Caines’ Rep. 262,) is expressly limited to a contribution for wages and provisions: and Chief Justice Kent distinguishes the case from that of the repairs themselves, as settled in the Digest, (14, 2, 6.)

In Patter v. The Ocean Ins. Co., (3 Sumner, 28,) wages and provisions were allowed, and not repairs. It is true, the point was not raised. '

Thornton v. The United Ins. Co., (3 Fairfield, 150,) is to the same effect, viz., to allow wages and provisions.

In Brooks v. The Oriental Ins. Co., (7 Pickering, 259,) the repairs necessary to enable the vessel to return home, from a port of necessity, were allowed in general average.

As to the case of Barker v. The Phoenix Ins. Co., (8 John. Rep. 307,) two observations are to be made. The reporter, in the head note, states that the repairs, in Copenhagen, were included in the general average allowed. The probability is, that they were not included. The accounts produced, (p. 310,) included the expenses of the vessel, including repairs, captain’s^nd seamen’s wages, provisions, and all the other expenses in relation to the vessel and cargo; and the claim was for all these, except such asevere properly chargeable to the vessel, as a^particular average. jjbhief Justice Kent, in delivering the opinion of the court, sajé, that the objection is, that the defendants are charged with the cargo’s proportion of a general average, arising from the unloading and storage of the cargo, and the wages and provisions of the crew, during the time the vessel was detained at Copenhagen to refit. He refers to Walden v. Leroy, (2 Caines, 263,) as deciding the point. (See supra.)

But, besides, the cargo was reloaded after the repairs were made, with the express intention of proceeding on the voyage, when, for the first time the interdict of the government was discovered.

We may, also, usefully resort to the foreign authorities, for information and guidance upon this subject.

M. Pardessus, in his Droit Commercial, (vol. 3, article 739,) observes : “ The right of those attempted to be charged, to examine into the character of the accident, and the primary cause of the disaster, is clear. A distinction will here be necessary. The tempest, the lightning, or other cause, has broken the masts. It is a case of simple average. But the impossibility of navigating the ship, compels a resort to a port of necessity, from the danger of perishing. That detention, (reláche,) and the expenses attending it, are matters of common contribution; but not the disbursements for repairing the ship, or of replacing it in the same condition, (de radoub et de la remise era état de navire.) The deliberation which has caused the destruction has not changed the character of the previous accident.”

M. Lemonnier, in his Commentary upon Maritime Assurance, (Paris, 1843,) discusses the general question, in regard to the wages, and provisions, and other expenses of such a detention, when the cause is a mere peril of the sea; and upon a critical examination of the 400th and 403d articles of the Code of Commerce, concludes, that even these ought not to be brought into a general average. He makes the following judicious observations, (vol. 2, p. 109, art. 303 :) “ The expenses which are allowed, as averages in gross, are not so classed by the legislature, because they concern at once the vessel and the cargo, but because they have been voluntarily, or necessarily incurred for the common safety. A jettison is made to lighten the ship during a tempest—masts are cut away—anchors abandoned. These acts cause a loss, or involve expenses; but it is not the maritime fortune which is the cause of them, it is more or less the occasion, but it is the will, the intelligence, and the hand of man, which determines and effects them. It is by the infallible sign of the concurrence of the human will, that we recognize a gross average.”

" Every leak places, more or less, the cargo in danger. It is interested in having that leak stopped. On that ground, not ineptly the expenses of the detention, but the repairs themselves, ought Mfce found among gross averages.” He closes thus: “ The detentionnis as fortuitous as its cause. The disbursements rendered necessary by it, are, in reality, only a forced consequence of the prior average, and the same reason which forbids us to treat, as a common average, the expénses of the repairs, commands us to class, as particular average, the expenses of the detention, an indispensable preliminary of those repairs.”

In support of these views, he cites the decision of the Court of Cassation, (in 1841,) admitting, however, that other decisions are to the contrary.

M. Boulay Paty, the editor of Emerigon, in his work entitled Cours de Droit Commercial, (Paris, 1834, vol. 4, p. 432,) discusses this subject, and concurs withLemonnier in his conclusions. Emerigon inclines to the opinion, that repairs necessary to render the vessel navigable, made at the port of repose, are proper objects of contribution. (Meredith’s ed. 482.)

The celebrated case of the vessel from Ostia, cited from the Roman law, (Emerigon, p. 481,) is exactly in point, to show that the repairs are not to be allowed. The injury which drove her to Hippone was from lightning.

I think it may be concluded, that the weight of authority is irresistible to prove, that reparations of a vessel, in a port of necessity, where she is driven by a fortuitous cause, are subjects of particular average, with the exception, that if they are incurred to repair a loss which is itself a subject of general average, they may be treated as common averages; but only to the amount fnecessary for that purpose.

| We consider, however, that there is one exception to this rule I in the present case. The damage to the vessel, caused by the swelling of the cargo, from the water poured down, may be allowed. What can be distinctly traced to that cause, that is, what lit would have cost to repair that specific damage, should be contributed, and no more. We call attention to the item of $2,542.50, which appears to be for coppering, and to similar items, whether they fall within this rule.

The adjustment must be examined, and if necessary, corrected, so as to limit the amount to be allowed for repairs to the sum essential to repair that injury which was caused by the swelling of the cargo.

2d. The expense of hiring the fire-engines, was incurred to put out the fire, and was for the common benefit of cargo and vessel. We consider the specie as still on board, liable for what any other part of the cargo was responsible. Such an expense was justly chargeable upon the residue of the cargo, as well as upon the vessel.

3d. The next subject of consideration is the freight. The adjusters have found, as I understand the adjustment, that the whole freight list was $9,562.66, and have deducted for freight on one hundred and forty-seven bales burned, $682.61, leaving to be paid for, $8,850.05. This amount is to be made good, and the contributory amount which the freight pays, is $4,004.87. The owner of the freight, here the owner of the vessel, will receive the balance of $4,875.18, less what he contributes as owner of the vessel.

It may be taken, as a general rule, that a claim for freight follows the fate of a claim for the vessel. If a vessel is lost under circumstances which make her loss a case of general average, the freight, which is lost, is an additional sacrifice of the owner. It has been earned in part, and would have been earned in full, but for the voluntary act which entailed the loss of the vessel, and, of course, prevented the earning of the freight from, the shippers.

In the case of Gray v. Waler, (2 Serg. & Rawle, 229,) the act was deliberate, and necessary for the preservation of the cargo. The vessel was so much injured as to be condemned and sold. The cargo was accepted by a sufficiently authorized agent, at the port of disaster. Freight, pro rata, was due. The vessel was allowed, at the value when she sailed, deducting deterioration for her wear and tear, and the freight which had become due, _pro rata.

In the Columbian Ins. Co. v. Ashley, (13 Peters,) as the vessel was wholly lost, and yet allowed for, the freight was alldwed as its accessory.

But when it appears that the ship, the source of the freight, is not to be allowed for, when the voyage is broken up, and no freight can be recovered from the shippers, when nothing to which the owner is entitled, is given up for the benefit of others, a claim for contribution cannot be sustained. Contributors to general average are not insurers of the freight.

Of course, if freight cannot be allowed for, it cannot be called upon to pay.

4th. Next, the adjusters have allowed for damage to the cargo, by reason of what they call the scuttling, the sum of $42,513.07, and make the whole cargo, at what I understand to be the invoice prices, to contribute for it, viz., $134,000.

It is not strictly accurate to say that there was a scuttling at Charleston, although acts were done purposely to hasten the sinking of the ship. She was filled with water, by streams from the engines, in order to extinguish the fire, and some damage to the cotton resulted from this.

Mr. Benecke states the rule, applicable to this branch of the subject, thus: “ If water is poured down the hatches of a vessel to extinguish a fire, in the hold or between decks, this must be considered to be done with the double purpose, of saving the articles which have already caught fire from utter destruction, and of extricating the vessel and rest of the cargo from an imminent danger. The effect of the water upon the former goods is, therefore, particular average; it is not an injury, but a real advantage to them. But the damage done, by the water, to the other goods, is, I conceive, of the nature of a general average.” (Benecke, p. 165.)

The invoice amount of the cotton is ascertained by deducting the amount of the invoices of the other portions of the cargo from the whole of the invoices. The following statement shows the result:—•

Total amount of invoices, .... $134,000 02

„ Specie, .... $31,853 00

Specie, .... 9,110 00

Trunk, .... 100 00

Staves, .... 341 25

$41,404 25

Case of snuffj 25 00 41,429 25

The invoice amount of the cotton must then have been............... 92,570 77

SALES.

Of cotton damaged by water, .... $48,739 21

Of cotton by fire, ....... 1,359 70

$50,098 91

50,098 91

$42,471 86

Damage to cotton, by the adjuster’s statement, as arising from the scuttling, as he terms it, . . . $42,513 07

Difference,.............. $41 21

The number of bales of cotton which were injured by the water can, no doubt, be ascertained from the account-sales; and the comparison of the invoice cost, of such number of bales, with the proceeds of the sale, would give the damage.

. If the loss upon the cotton, by the water, was arrived at in the manner I have suggested, it would be liable to this objection: the sales, which produced $48,739.21, may have been of two-thirds of the whole cotton, or say about $61,700. The actual loss would then be the difference only, about $13,000. The fire may have diminished the value of the other third so greatly, as to make it yield but the $1,359.70. In other words, there may have been nearly a total loss of one third of the whole amount of cotton, by the fire, and a loss of about twenty-one per cent, on the other two-thirds.

The result which the adjuster has reached may, however, be entirely accurate. It is necessary that he should state the process by which he arrived at it. The principle is before given.

5th. There is the sum of $4,738.88, charged in general average expenses at Charleston. A large part of the items is stated in the schedule annexed to this opinion, amounting to $3,591.13. There are, for example, the charges: $650, for discharging cotton and pumping out water; for landing, storing and weighing cotton, $959.15; commissions on sales of cotton, $1,218.48; wages, provisions, &c., $291.43.

We do not see upon what ground the most of these charges are made subjects to be contributed for. If, indeed, expenses had been incurred in landing part of the cargo, in order better to empty the vessel of the water, they might be, perhaps, properly allowed; but we understand that the water was pumped out before any portion of the cargo was landed.

Again, if the cargo was landed, and expenses incurred with a view to the resumption of the voyage, a claim for such expenses might be valid. But, we presume, the cargo was landed, if not after a determination to break up the voyage, yet, at least, without a view to its continuance. If, however, such expenses were incurred with a view to decide, as to the resumption, they may be proper. The adjuster, or referee, may inquire into this matter, and make such allowance as shall be proper, if the facts will warrant it.

The parties can probably settle, upon these principles. If not, there must be a reference, to revise and correct the adjustment. The order will be drawn up by the attorney of the plaintiff, and submitted, for settlement, to one of the Judges.

A.

ANALYSIS OF THE ADJUSTMENT OF THE GENERAL AVERAGE.

Losses contributed for.

Danish brig, . . . . $5,120 37

Fire-engine company, 5,198 00

Sundry Expenses.

Discharging cotton and pumping out water, $ 650 00

Piling cotton on wharf, ...... 238 37

Landing, storage, weighing cotton, . . . 959 85

Insurance on the cotton on the wharf, . 101 00

Watching ship and cargo,...... 132 00

Commission on sales oí cotton, .... 1,218 48

On $48,739.21, by water only.

On $1,359.70, by fire only.

Wages, provisions, &c.,. ...... 291 43

/ $3,591 13

Sundry other items, ........ 1,147 75

4,738 89

Total charged to general average at Charleston,. . $15,057 25

Proportion of expenses of repairs in New York, Among the items are these— 4,285 17

1,386 sheets Y. metal, 10,170 lbs., at five cents, ...... $2,542 50

Refastening, caulking, coppering, . 1,218 00

600 bushels of salt,...... 250 00

$4,010 50

One third off, 1,336 83

$2,673 67

Captain Leavitt, discount paid on remitting) $39,000 to New York,.......) 195 00

$19,537 42

Cargo.

Loss on cotton by scuttling, .... $42,513 07

Snuff, $25 ; clothing, $50,..... 75 00

42,588 07

Freight.

Freight list,..........$9,562 66

On 147 bales burned,...... 682 61

8,880 05

Loss in passage-money,.......... 703 17

Adjusting, $450; bond, $2; commissions collecting general average, $1,804.01,....... 2,256 01

Amount to be contributed, $73,964 72

Contributory Interests.

Vessel valued at....... . $28,000 00

Less repairs particular average, . . . 8,088 26

$19,911 74

Freight made good,......8,880 05

Passage at time of sailing, .... ..... 1,225 00

Cargo,..........134,000 02

$164,016 81

$164,016.81: 73,964.72 about 45.09* net.

Batschild, Brothers.

Defendant—

On $31,853; specie, 45.09*,.....$14,364 66

H. Rousseau, ........' . $4,108 23


source: Caselaw Access Project

author: By the Court. Bosworth, J.

license: Public Domain

text:
    Claflin and others v. Butterfly & Devin.
    When two persons are sued together, on a contract, which on its face is their joint contract, but which at all times was, in legal effect, the contract of only one of them, a judgment may be rendered against the latter, in favor of the plaintiff, and against the plaintiff, in favor of the other defendant.
    Under the Code, the plaintiff is not obliged, in an action against several, as joint-contractors, to establish the contract against all of them, in order to recover against any of them.
    (Before Oaklet, Cm J., Dder and Boswobth, J.J.)
    February, 1856.
    This action came before the General Term, on a verdict in favor of the plaintiffs against Devin only, subject to the opinion of the court, on questions of law. It was tried before Chief Justice Oakley and a jury, in October, 1855.
    The defendants were partners, doing business under the name of “ Butterly & Devin.” The action was brought against them as partners, upon a written guaranty, in the firm’s name, signed by Devin, to the effect that U. P. Fitzgerald should pay for all goods bought by him of the plaintiffs, from the 8th of March, 1853, •when payment was due, not exceeding in amount $300, the purchases to be on a credit of three months.

      The guaranty was signed by Devin, without the knowledge, or prior or subsequent assent of his partner, Butterly.
    The plaintiff having proved his case, except the execution of the guaranty with the assent of both defendants, rested.
    The counsel for the.defendants then moved to dismiss the complaint on the grounds—
    1st. That it appeared that the said writing, so far.as the defendants were connected therewith, was, if any, a joint liability.
    2d. That the same was given by the defendant Devin, without the privity or consent, express or implied, of the other defendant, and in a matter not connected with the transactions of Butterly & Devin.
    3d. And that the plaintiffs had not shown any connection between the said’ Butterly and the said writing.
    The said Judge, on the said motion, ordered the complaint dismissed as to the defendant Nicholas Butterly, and refused to dismiss the same as to John Devin; to which refusal the counsel for the defendants, then and there excepted.
    The counsel for the defendants offered to prove that the said Nicholas Butterly, the defendant, was not dead, but living in the city of New York, and that the said Nicholas Butterly was, at the time of the making of the said writing, the partner of the said Devin, and doing business in the city of New York, and in the name, style and firm of Butterly & Devin.
    And, thereupon, the said Judge rejected the evidence as irrelevant, to which opinion and decision the counsel for the defendants excepted.
    The counsel for the defendants then asked the said Judge to charge the jury—
    1st. That it appeared that the said writing, so far as the defendants were connected therewith, was, if any, a joint liability.
    2d. That the same was given by the defendant Devin without the privity or consent, express or implied, of the other defendant, and in a matter not connected with the transactions of Butterly & Devin.
    3d. And that the plaintiffs had not shown any connection between the said Butterly and the said writing.
    4th. That as no personal defence is made by Butterly, if the said writing is a joint liability, so far as the defendants are connected therewith, then the jury should render a verdict in favor of the defendants.
    The court refused so to charge; and charged the jury that the action could not be sustained against the defendant Butterly, but that when the action is brought against two, as in this case, and it turns out that only one was connected with it, the judgment may be against that one; and that their verdict in this case should be in favor of the plaintiffs against John Devin alone, for the amount claimed by the plaintiffs.
    To which opinion and charge the counsel for the defendants then and there excepted.
    The said issues were then submitted to the jury on the question of damages, and they found a verdict for the plaintiffs for three hundred and thirty-six dollars and seventy-five cents, subject to the opinion of the court at General Term, on the said questions of law so reserved at the trial.

      Wm. Allen Butler, for plaintiffs.

      Geo. Shea, for defendant Devin.
   By the Court. Bosworth, J.

This action is brought against the defendants, as partners. The pleadings and proofs show, that Devin, without the knowledge or assent of Butterly, signed the firm’s name to an instrument, guarantying to the plaintiffs, punctual payment, by Fitzgerald, for all goods they might sell him after March, 1853, the liability, under the guaranty, not to exceed $300 at any one time.

Butterly is conceded to be not liable. The only question is this: The plaintiffs having sued the defendants, as partners, on a contract purporting to be signed by the firm, and bearing the genuine signature of the firm, can he have judgment against one only, when it is clear that the other defendant is not liable?

Under the old system, it was well settled, that in an action against several, as partners, or joint contractors, if the evidence established that too many persons were made defendants, and that the contract was not obligatory upon all, as the joint contract of all, the plaintiff could not recover against any of the defendants, although the only persons liable, were, in fact, made defendants in the action. (1 Chitty on Pleadings, 50.)

Hi actions upon contracts, it was also necessary that all of several joint promisees, should he made plaintiffs. If there were too many or too few parties, the plaintiffs could not recover in that action. The consequence was, that for such a defect of either parties, plaintiffs or defendants, the plaintiffs were driven to a new action, and were subjected to the costs of all the defendants, in the first action.

The 274th section of the Code, provides that the judgment may be given for, or against, one or more of several plaintiffs, and for, or against, one or more, of several defendants.

This language is broad enough to admit of a judgment being recovered against one of two persons, sued as partners, and of a judgment being rendered, in the same action, against the plaintiffs, in favor of the other defendant.

The codifiers, in the note to this section, and which was reported with it to the legislature, referred to the rules, in actions at law, above stated, and suggested that this section was designed, among other purposes, to abrogate those rules, and allow a judgment to be taken, in favor of the plaintiffs shown to be entitled to recover, and against the defendants shown to be liable. The legislature passed the section, with this avowal of the intent with which it was drawn, well known to it. It is not unreasonable to infer, that they passed it to enable that intent to be realized.

In this case, although the contract, on its face, is the contract of a firm, and although all the members of the firm are prosecuted as being the parties who made it, yet the pleadings and proofs show that, in legal effect, it is the contract of one of the members of the firm only, and a recovery is had accordingly.

In Brumskill v. James, et al., (1 Ker. 294-301,) the action was on a note, made in the copartnership name of Eaglesum & Co., and was brought against James and Eliza Eaglesum, as being the persons composing the firm. James Eaglesum alone appeared and defended. It turned out that his partner was his wife. The Judge, at the circuit, was requested to charge the jury, that if they found, that at the time the notes were made, the defendants were husband and wife, they should render a verdict for the defendants. This the Judge refused to do, but charged that, “ where an action is brought against two persons, and it turns out that only one was ever liable, tire judgment may be against the one so liable.” To this charge, and to the refusal to charge as requested, exceptions were taken.

In speaking of these exceptions, the court say: the defendant “relies upon the misjoinder, and upon the general rule of the common law, that where a joint contract is the subject of the suit, the recovery must be against all the defendants or neither. This was the inconvenience the above provisions of the Code were designed to remedy, and no case is likely to be presented, in which their application would be more manifestly equitable and just, than the present.”

All the Judges, except Selden, J., concurred in that opinion.

In this action, it is enough to sustain the decision made at the trial, and .to entitle the plaintiff to a judgment on his verdict, to hold, that when two defendants are sued jointly, on a contract which, on its face, is the joint contract of both, but which, in legal effect, was, at all times, the contract of one only, a judgment may be rendered against the party liable, and in favor of the other. The defendant, in such -a case, might have been sued alone, and a recovery had against him, on a complaint stating the actual facts.

This rule has been applied by the Supreme Court, at General Term, when the same court held, that under § 274 of the Code, as construed by them, a recovery could not be had against one of several defendants alone, except when such a judgment could have been had against him if he had been sued alone. (Parker v. Jackson, 16 Barb. 33.)

The latter rule virtually concedes, that in all cases, where several are sued as joint contractors, a recovery may be had against the parties who made the contract, although it is not the joint contract of all. For had those who made it been sued alone, a recovery could have been had against them, as a matter of course. (Harrington, v. Bingham, 15 Barb. 524.)

The plaintiff is entitled to judgment, on the verdict against the defendant, Devin.


text:
    Allen v. Haskins.
    An answer, containing a counter claim, is not demurrable, because it is not an answer to the whole of the plaintiff’s cause of action.
    The Code prescribes no rule, by which to determine the sufficiency of an answer containing a counter claim, except that it must state facts sufficient to constitute a good cause of action, in favor of the defendant and against the plaintiff, and that it be one of the several causes of action defined by § 160 of the Code.
    (Before Oaklet, Ch. J., Duek and Boswokth, J.J.)
    February, 1856.
    This action came before the court, on an appeal by the plaintiff, from an order overruling a demurrer, interposed by him, to the defendant’s answer. The issues of law, raised by the demurrer, were tried before Mr. Justice Hoffman, in December, 1855.
    The pleadings are as follows, viz.:—■
    ' The plaintiff complains against the defendant, and states, that the defendant, on or about the 31st day of January, 1855, at the city of Hew York, made this promissory note, bearing date the said 31st day of January, and thereby promised to pay, four months after the date thereof, to the order of himself, $120, for value received. And the said defendant endorsed the said note in blank, and duly delivered and put the same into circulation, and the said note was afterwards, and before it became due, duly transferred and delivered to the plaintiff, for value, and the plaintiff is now the legal owner and holder of the said note; that when the said note became due and payable, it was duly presented, by a notary public, for payment, but the defendant refused to pay the same. Wherefore, the plaintiff demands a judgment against the defendant for the said sum of $120, and interest thereon from the 2d day of June, 1855, besides notary’s charges and the costs of this action.
    The defendant, for amended answer to the complaint, upon information and belief, denies that the note, mentioned and referred to in said complaint, was, after it was made by him, and before it became due, duly transferred and delivered to the plaintiff for value. And he avers, that the said note was made and delivered by him to one Dillinger, who, this defendant is informed and believes, was, at that time, an agent or servant of the plaintiff, and acting as such, on behalf of the plaintiff, in that transaction, in exchange for a quantity of segars, which were sold, by sample, to the defendant, at that time, by said Dillinger, as such agent; that when said segars were delivered to this defendant, they did not correspond with the samples, and were not worth, in all, the sum of twenty dollars; that, as soon as the defendant learned the character of said segars, he offered, to said Dillinger, as such agent, to return them, which he is still ready and willing to do. Wherefore, the defendant says he has been damaged by the plaintiff, by the fraudulent sale aforesaid, in the sum of $100, which he claims to recoup from the amount of the said note. And the defendant demands judgment against the plaintiff for the costs of this action.
    The plaintiff demurs to the defendant’s amended answer, in this cause, for insufficiency, and states the following grounds of demurrer:
    1st. That the said answer is pleaded in bar of the whole of the plaintiff’s complaint, but alleges facts in bar of only part of the cause of action set forth in that complaint.
    2d. That the said answer does not deny any material allegation of the complaint, nor does it set up new matter in bar thereof.
    3d. That the said answer does not state facts sufficient to constitute a defence, or deny the plaintiff’s cause of action.

      J. H. Harte, made and argued the following points, in behalf of the appellant.
    1st. The answer professes to be an “ answer to the complaint,” and “ demands judgment against the plaintiff.” It claims to answer the whole complaint, and demands judgment for the whole of the defendant’s costs, without any deduction. It does not, in terms, admit any sum to be due the plaintiff. It is pleaded, in bar of the whole demand, but alleges facts in bar of a part only of that demand, and is, therefore, demurrable for insufficiency. (10 How. Pr. R. 67, 73; 6 id. 436; Chitty on Pl. 454; 18 J. R. 28.)
    2d. The denial, in the beginning of the answer, is not intended as a defence of itself, but only to lay a foundation for the new matter. It is not a general denial, and does not take the place of the old general issue, so as to allow recoupment to be given in evidence under it. It is, moreover, a denial of immaterial allegations, (9 How. 215, 216, 217,) and it is not in the form required by the Code; being “ on information and belief,” which the Code does not allow, and is, therefore, a mere nullity. (10 How. Pr. R. 22; Code, § 149.)
    3d. The facts alleged in the answer do not constitute a “defence,” nor do they amount to a “counter claim,” and are, therefore, insufficient. (10 How. Pr. R. 72, 73 ; Code, § 149.)
    4th. The Code does not authorize a partial defence, nor did the “ former practice” allow a partial defence, and that practice is continued by the Code. (Code, § 468, 469; 10 How. 67, 73.)
    5th. The facts alleged in the answer, not being well pleaded, are not admitted by the demurrer, (10 How. Pr. R. 10,) and they have been sworn by the plaintiff to be wholly false, as to his being in any way connected with the sale of the segars, or the origin of the note.
    6th. Even if the order should be affirmed, as the point has not been settled under the Code, it should be without costs. (8 How. Pr. R. 441, 448.)

      W. H. Disbroio, for respondent,
   By the Court. Bosworth, J.

This case was submitted on written points.

Ko point is made upon the papers submitted, that the averment that the segars “ were sold by sample” was not a sufficient allegar gation that they were sold upon an agreement or warranty, that the bulk of the articles should correspond in quality, with the sample, with reference to which the contract was made. (Bierne v. Dord, 1 Seld. 95.) On the contrary, the appellant’s points state that “this appeal is brought for the purpose of settling the question, whether a partial defence can be pleaded in bar.” This assumes, that the facts stated in the answer constitute a partial defence, and the appellant contends that a partial defence cannot be pleaded; that to constitute a good answer, the defence it presents must be total, and that the answer in question does not contain a counter claim, because, as is insisted, the facts stated show a partial failure of consideration, and do not give a right of action.

If the sale was, what is technically termed, a sale by sample, the defendant, if the segars delivered did not correspond with the sample, would have a right of action, to recover the difference between the value of such goods in the condition they were at the time they were delivered, and of the same goods in quality like the sample. (Bierne v. Dord, supra; Hargous v. Stone, 1 Seld. 72.)

The Code declares that the sufficiency of pleadings is not to be determined by pre-existing rules, but by those prescribed by the Code itself, (§ 140.) That an answer may contain new matter, constituting a counter claim, (id. 149.) A cause of action, arising out of the contract or transaction set forth in the complaint, is a counter claim, (id. 150, sub. 1.) The Code has no such qualification as that the counter claim, to be pleadable, must entitle the defendant to an amount of damages equal to the amount of the plaintiff’s claim. It is enough, so far as the essentials of a sufficient answer are prescribed by the Code itself, that it states facts constituting a cause of action against the plaintiff, arising out of the contract or transaction set forth in the complaint, as the foundation of-the plaintiff’s claim-, or connected with the subject of the action.

If the defendant had paid cash on the delivery of the segars, it will not be pretended, if the sale was by sample, and the goods delivered did not correspond with the sample, that the defendant was remediless. If he offered to return the goods, on discovering the defects, he could maintain an action to recover his damages.

Assuming the allegations of the answer to be sufficient as a pleading, to raise the issue, whether the sale was one by sample, then it is quite clear that it sets up a counter claim, as that word is defined by the Code. The Code does not discriminate between the counter claims, which it defines, and allow those to be set up which give a right to damages equal to the amount of the plaintiff's demand, and prohibit setting up those on which the damages claimed do not equal it.

The Code prescribes no rule by which to determine the sufficiency of an answer containing a counter claim, except that it must state facts enough to constitute a good cause of action in favor of the defendant and against the plaintiff,- and that it be one of the several causes of action defined by § 150 of the Code.

This answer sets up such a counter claim. It follows that the demurrer was properly overruled, and that the order appealed from must be affirmed with costs. But the order of affirmance will allow the plaintiff to reply, on payment of costs of the de-


author: By the Court. Oakley, Ch. J.

text:
    Frederick M. Kelley and others v. Francis H. Upton.
    The intention of the parties, in a contract of sale, must be collected from the whole instrument; and, in order to carry that intention into effect, the literal import of the words used may be disregarded.
    The true character of the contract, as executed or executory, depends upon the proper answer to the question, whether it was intended to vest in the purchaser a present and absolute title to the thing sold.
    Where the delivery of the thing sold, and the payment of the price, are to be simultaneous acts, the title, until delivery or payment, remains in the seller.
    Where the acts are to be thus concurrent, the promises of the parties are dependent upon a mutual performance, and neither can maintain an action against the other, without showing, on his own part, an actual performance, or a legal offer to perform.
    Hence, when the contract relates to a future transfer of stock, the seller, to maintain an action for the price, must prove a tender of the stock, before the action was commenced.
    The mere admission, by the purchaser, of his liability, when payment is demanded, does not operate as a waiver of such tender.
    New trial ordered.
    (Before Oakley, Ch. J., and Dder, J.)
    February, 1856.
    This was an action to recover damages, for the breach, by the defendant, of his agreement to purchase from the plaintiffs 3,000 shares of the stock of the Lindsay Mining Company.
    The defence was, that the stock had not been tendered to the defendant before the commencement of the action. The answer also claimed to set-off $875, the amount of a promissory note, which the defendant had placed in the hands of the plaintiffs, as a security for his performance of the agreement, and which it averred they had collected.
    The cause was tried before the Chief Justice and a jury, in November, 1855.
    The following are the proceedings on the trial:—
    The plaintiff called, as a witness, James S. De Mott, who, being sworn, testified: I am in the employment of the plaintiffs, Kelley, Townsend & Company, and was so in April, 1854, and have ever since been in their employment; I know the defendant Upton.

      Two paper-writings were shown the witness, and he then said: I called upon the defendant, at his office, in the city of New York, at the request of the plaintiffs, on the 19th day of September, 1854, with these papers; I presented them to the defendant, saying, “Kelley, Townsend & Company want the money on these;” he took the papers and looked them over, and said, “ These are all right, I wish to God I could pay it, but I have not got the money to pay it; parties owing me beg me to let them off a short time, and I can’t pay it now.” I then left, and nothing more was said.
    The plaintiffs then read in evidence the two paper-writings, the first of which was in the words and figures following:
    3,000 shares B. 90. 72J cts. New York, Api. 15,1854.
    I have purchased of Kelley, Townsend & Co., three thousand (3,000) shares of the stock of the Lindsay Mining Company, at seventy-two and one half cents per share, payable and deliverable, buyer’s option, in ninety days, with interest at the rate of six per cent, per annum, and six-and-one-quarter cents per share commission, and have deposited with them one hundred shares of McCullock Gold Company stock, as security for the performance of this contract.
    Francis H. Upton.
    (Endorsed)
    Certified for one hundred shares McCullock Gold Co. stock surrendered, and John L. Colby’s note, dated March 11th, for $875, 7 mo. from date, substituted in place, as collateral security for the performance of this contract.
    New York, May 20th, 1854.
    Francis H. Upton.
    The second was in the words and figures following:
    F. H. Upton, Aug. 29th: 3,000 Lindsay Mining Co., a 721
    Interest and com.,......$2,395 13
    Int. to Sept. 15th,...... 7 92
    $2,403 05
    Sept. 15, 1854. D. Sept. 19, ’54.

      The plaintiffs then tendered, in court, to the defendant, a certificate of stock, and an assignment thereof, from the said plaintiffs, duly endorsed thereon. The certificate was of 3,000 shares of the stock of the Lindsay Mining Company of Korth Carolina, and bore date the 4th October, 1854.
    The plaintiffs then rested their case.
    The defendant’s counsel then moved to dismiss the complaint, on the grounds—
    1st. That the plaintiffs had not proved any tender of the stock before suit was brought.
    2d. That there was no evidence that the plaintiffs were the owners of the stock at the time of the sale thereof.
    The court denied the motion, and the counsel excepted.
    The court thereupon directed a verdict for the plaintiffs, for the sum of $1,665.31, being the amount claimed, less the payment or set-off in the proofs and answer set forth and referred to, subject to the opinion of the General Term, upon a case to be made.
    The cause was now heard upon the case so made.

      J. T. Williams, for plaintiff,
    in moving for judgment upon the
    verdict, insisted that, from the terms of the contract, a tender of the stock was not necessary, before the bringing of the action. I contend, (he said,) that it was an executed contract, and a title to the stock passed immediately to the defendant, the plaintiffs retaining it merely as a security. The language of the contract, “ I have purchased,” showed this. Had a future sale been intended, the language would have been, “I have agreed to purchase.” The case of Lester v. Jewett, which will be relied on by the other side, (1 Kernan, 453,) was an agreement to purchase, and so were all the cases there cited. The doctrine of that case is confined to ex-ecutory contracts. The fact that there was not an immediate delivery of the stock is of no importance. The precedents and the authorities show that such a delivery is not essential to a sale. (2 Chitty’s Plead. 56; 1 Cowen’s Treat., 3 ed., 116, 117; Starkie on Evid., 873; 1 Parsons on Cont., 438, 441.) Again, the evidence of De Motte shows, that even if a tender were necessary, it had been- duly made, or was waived by the defendant. As he declared his inability to pay, a tender would have been a mockery. (10 East. 159; 5 B. & Aid. 712.) It was not necessary for the plaintiffs to prove that they owned the stock when the contract was made. Their not owning it, if the statute reaches the case, was a matter of defence, but no such defence was set up in the answer, or was offered to be proved upon the trial. The words of the contract, “ I have purchased,” are an admission that the plaintiffs then owned the stock.

      E. W. Stoughton, for the defendant.
    In every case of a mutual agreement, where the thing to be done by the one party, is the consideration of that which is to be done by the other, and both are to be done at the same time, the promises are dependent, and neither can recover against the other, without showing a performance on his own part, or a tender to perform. (Thorp v. Thorp, 1 Salk. 112; Pordage v. Cole, 1 Saund. 320; Bank of Columbia v. Wayne, 1 Pet. 255; Parker v. Parmlee, 20 John, 130; Lester v. Jewett, 1 Ker. 354, and other cases.) Here, the precise character of the agreement of the parties is that which has been stated. The plaintiffs agreed to sell, and the defendant agreed to buy, a certain quantity of stock, which was to be delivered by the plaintiffs, and paid for by the defendant, on a future day. The words of the contract are, “ payable and deliverable (buyer’s option,) in ninety days,” clearly showing that the acts were to be concurrent. The proof clearly shows that no tender of the stock was ever made before the suit was commenced, and the plaintiff was certainly not bound to accept the tender made upon the trial. As to'the evidence that has been relied on, as' excusing a tender, or proving that it was waived by the defendant, it was not admissible, under the pleadings, (Garvey v. Fowler, 4 Sand. S. C. Rep. p. 665,) and if admissible, was plainly insufficient. There is still another ground upon which we insist that the plaintiffs are not entitled to recover. We submit that it was incumbent upon them to prove, to show the validity of the contract, that, when it was made, they were the owners of the shares of stock which they agreed to sell. Here, the certificate produced upon the trial, proved, in effect, that they were not the owners until October, 1854, nearly a month after this action was brought.
    We ask, that the verdict be set aside, and the complaint be dismissed, or a new trial ordered.
   By the Court. Oakley, Ch. J.

Notwithstanding the words “I have purchased,” literally construed, may bear the interpretation that has been given to them, we are clearly of opinion, that the contract upon which this action was founded, was not executed, but executory; not an actual and present sale, but an agreement to sell, to be carried into effect on a future day. The intention of the parties, in agreements of this nature, is to be collected from the whole instrument; it is the intention, thus collected, that the court is bound to carry into effect, and in doing so, the literal import of particular words, when inconsistent with the intention, thus ascertained, may be, and, in numerous cases, has been disregarded. (3 Duer, 309.) In Decker v. Furniss, (3 Duer, 292,) the instrument, which related to the sale of a steamboat, began with the words, “ W. H. Brown sells to M. P. Furniss the one-half of the steamboat Rhode Island,” yet, in reversing the judgment of this court, the Court of Appeals held that the contract had not the effect of vesting an immediate title in Furniss, but was an agreement to sell, and not a sale, and that, although the words used denoted a present transfer, a future only was intended. In determining the true character of a contract of sale, as executed or ex-ecutory, the question must always be, whether the intention was to vest in the purchaser an immediate and absolute title to the thing sold, without reference to the payment of the price, or whether the delivery of the thing, and the payment of the price, were to be simultaneous acts, for in this last case, it is certain that, until delivery, the title remains in the seller. (9 M. & N. 312; 2 B. & Ald. 329; 18 John, 434; 6 Wend. 77; 1 Denio, 591.) And we deem it to be equally certain, that where delivery and payment are to be concurrent acts, the promises of the parties are dependent and conditional, and neither, therefore, is entitled to bring an action against the other, for his refusal to perform, without showing, on his own part, an actual performance, or a legal offer to perform. (Lester v. Jewett, 1 Kern. 454.)

Applying these rules to the contract before us, it seems to us quite evident, that it was not the intention of the plaintiffs to give to the defendant a present and absolute title to the stock, so as to enable him, at once, to claim its delivery, without paying, or offering to pay, any portion of the stipulated price; yet such was the necessary consequence, if the defendant became the owner of the stock "by the mere execution of the agreement. As to the allegation, that the plaintiffs were to retain the possession of the stock, as their security for the payment of the price, we regard and reject it, as simply gratuitous, since the agreement contains not a solitary phrase from which an intention to pledge the stock, as belonging to the defendant, can be inferred. But if the plaintiffs, without payment, were not bound to deliver the stock, it seems to us, there is no room for the supposition, that the defendant was bound to make the payment, whether the stock was delivered or not; that his promise was independent and absolute, while that of the plaintiffs was conditional. If the payment of the price, by the defendant, was a. condition of the obligation of the plaintiffs to deliver the stock, we are clear in the opinion, that the delivery of the stock by the plaintiffs, was equally a condition of the obligation of the defendant to pay the price. The doubtful words, “ I have purchased,” upon which the entire stress of the argument for the plaintiffs was laid, are, in our judgment, controlled and explained by the subsequent words, “payable and deliverable, buyer’s option, in ninety days,” for these last admit but one interpretation, and conclusively show, that the payment and delivery were to be made at the same time, and, consequently, that the promises on both sides, were dependent and conditional. The agreement, therefore, was for a future transfer of the stock, and was not an executed sale.

It follows, that the plaintiffs can have no right to maintain this action, unless they have shown that they made a tender of the stock, to the defendant, before it was commenced, and not merely » demanded payment of the price; or unless they have shown, and under the pleadings, had a right to show, that a tender was excused or waived. We do not think that any part of this necessary proof has been given.

It is not alleged, that there is any positive and direct proof of a tender, nor can we draw, as we were urged to do, from the language of the defendant, when payment was demanded, an admission that a tender had been previously and duly made. The inference that such was his meaning would be unwarranted, and such as a jury could never be permitted to draw.

Kext, as to the evidence, that a tender was waived.

We agree with the counsel for the defendant, that, according to the decision in Garvey v. Fowler—which, although the decision of a single Judge, was approved by his brethren, and has since been uniformly followed—evidence to prove a waiver, under the complaint, as framed, was not admissible. . The principle of that decision is, that where facts, excusing the performance of a condition precedent, are meant to be relied on, as a ground of recovery, they must be stated in the complaint, since such facts, as material and issuable, constitute, in part, the cause of action. And it cannot be denied, that this principle is plainly applicable to the case before us. Still, had facts amounting, in reality, to a waiver, been proved upon the trial, we will not say that the complaint might not be amended, upon terms, so as to let in the proof, hereafter; but the total insufficiency of the proof that was given, relieves us from the necessity of considering that question. Nothing more was proved than an admission, by the defendant, of his liability to satisfy the claim of the plaintiffs; but we were referred to no authorities, to show, nor can we believe, that such an admission operates as a waiver of the performance of a condition precedent.

Upon the other questions that were argued by the counsel, we do not think it necessary to express an opinion.

The verdict for the plaintiffs must be set aside, and there must be a new trial, with costs to abide the event.