#### John Wheelwright *versus*Joseph D. Beers.

The declaration in this case, (the same mentioned in the preceding one,) set forth a charter-party, whereby the defendant stipulated, that the brig Champion, of which he was the owner, should perform a voyage from N. Y. to Omoa and bach for the plaintiff It then averred a performance of all the covenants on the part of the plaintiff, and assigned, as a breach of the defendant’s covenant, that the vessel did not proceed to Omoa, but put into Norfolk. That the defendant did not despatch her thence, but neglected and refused so to do, contrary to the effect of the charter-party.

The defendant interposed a special plea, admitting the charter-party, the sailing of the vessel, and that she put into Norfolk ; but averring that said vessel was so much damaged by the perils of the sea, that it became necessary that she should put into the nearest port, and that she accordingly put into Norfolk, as a port of necessity. That while there, she was examined for the purpose of ascertaining what repairs were requisite to enable her to proceed on the voyage, when it was found necessary, that she should be sold for the benefit of all concerned,—that she was sold accordingly, and so, and not otherwise, the voyage aforesaid, was by the mere perils of the sea, broken up and prevented, “ *absque*hoc, that the said vessel ought to have proceeded on her said voy- “ age,” &c.

To this plea the plaintiff replied, admitting the injury to the vessel, the putting into Norfolk, and the breaking up of the voyage there, but averred that the voyage was not broken up by the mere perils of the sea, &c. *“absque*hoc, that “ the vessel was examined at Norfolk, to ascertain the repairs necessary to “ enable her to proceed on her voyage,” &c., as alleged by the defendant, and *concluding to the country.*

Held, that the issue joined by these pleadings, was upon the fact stated *in, the inducement*to the plea, whether the voyage in question was broken up by the mere perils of the sea; and that it involved necessarily, an inquiry, as to the seaworthiness of the vessel;—the special traverse in the plea, and in the replication being considered immaterial and informal.

The jury having returned a verdict in favor of the plaintiff upon this issue, it was also held, that the rule of damages to be adopted, was the difference between the prime cost of the cargo at New-York, and the net amount for which the goods were actually sold, after the voyage was broken up, no notice being taken of the loss of the market at Omoa.

Newly discovered evidence, which is cumulative merely, is never the ground of a new trial, especially where a part of it was in the knowledge of one of the witnesses, examined at the trial, but not disclosed by him.

A covenant made by J. W. as agent for J. L., will support an action in the name of the former, although he has no interest in the subject of it• and the declaration may allege the damage to have been sustained by *J.*W,

*392After judgment was pronounced in the preceding case, the plaintiff filed a replication to the fourth plea, and the cause was Upon ^lie jssues tendered by the replications to the third and fourth pleas. The plaintiff’s reply to the third plea, admitted, that the vessel, while pursuing her voyage, was, by the force and violence of the winds and waves, and by damages from the perils of the seas, so much injured, that it became necessary that she should put into the nearest port, that she did put into Norfolk, ás a port of necessity, and that the voyage from New-York to Omoa, was then and there broken up and prevented. But the replication averred, that the “ voyage was *not*broken up and prevented by the mere perils “ of the seas,” in manner and form as the plaintiff had alleged, *“ without this,*that the said brig while at Norfolk aforesaid, was “ duly examined, with a view to ascertain the repairs expedient “ and necessary to enable her to proceed on her said voyage, and “ it was then and there found necessary to sell said brig, for the “ benefit of all concerned, and the said brig was then and there “necessarily sold for the benefit of all concerned,”' and concluded to the country.

The replication to the fourth plea, admitted, that the vessel, while prosecuting her voyage, was compelled to put into Norfolk, as a port of necessity, and that said voyage was then and there broken up ; but denied that the voyage “ was broken up by the “mere perils of the sea,” “ *without this,*that the said brig, while at “Norfolk, was duly examined, with a view to ascertain the re- “ pairs expedient, and necessary to enable her to proceed on said “voyage, and it was then and there found necessary to sell said “ brig, for the benefit of all concerned, and the said brig was then “ and there necessarily sold,” and concluded to the country.

At the trial of the cause, (which was before the Chief Justice,.) the counsel for the plaintiff stated, that under the pleadings, as understood by them, the defendant had admitted the execution of the charter-party, and the commencement of the voyage *;*but alleged, by way of defence, that *it was broken up by the mere perils of the seas.*That the plaintiff had taken issue on that allegation, and it would appear in evidence, that the voyage was broken up, not by the perils of the sea, but by the unseaworthiness of the vessel.

*393The counsel for the defendant, in reply to this suggestion, stated that, according to *their*understanding of the pleadings, the *seaworthiness*of the vessel was *admitted*by the plaintiff, and that the facts to be passed upon by the jury, were set forth in the *formal traverses*contained in the replications.

The Chief Justice decided, that the issues tendered by the replications, were substantially the same, and that they presented an affirmation on the part of the defendant, and a denial by the plaintiff, that the vessel was compelled to put into Norfolk by the mere perils of the seas. To this opinion the counsel for the defendant excepted.

As the affirmative of the issues was thus cast upon the defendant, he proceeded to call witnesses and produce testimony, to show that the putting into Norfolk, and the subsequent sale of the vessel, were caused by sea damage, sustained by the vessel, between the fourth and eight of September, in a violent gale of wind.

It appeared that a survey was held upon the vessel after her arrival at Norfolk, which, after pointing out particular defects in the vessel, a part of which were the result of sea damage and a part not, concluded by recommending a sale of the vessel for the benefit of all concerned. The principal question of fact, presented to the jury under this part of the case, was as to the seaworthiness of the vessel at the time she left New-York. The testimony of the officers of the vessel, and several others, was very strong, to show that the voyage was broken up by damages received during the gale, while the surveyors and some shipwrights were of opinion, that certain defects, exhibited when the vessel was examined at Norfolk, could not have been the result of sea damage, but must have existed at the time the vessel sailed from New-York, and that *these*defects rendered it inexpedient to repair the vessel, after the injury sustained from the gale.

It appeared also, that the cargo put on board the vessel at New-York, belonged to one *John lAving,*that the plaintiff had no interest in it, but acted as the mere agent for the owner. A part of this cargo, (which was invoiced at 3,744 dollars,) was sold at Norfolk, after the voyage to Omoa was broken up, and the *394remaining parts shipped to the plaintiff at New-York, and sold by him there. The loss upon these sales, including the charges, amounted to 1000 dollars. The plaintiff also called witnesses, to show what the probable amount of the sales of said cargo would have been at Omoa, and the defendant produced countervailing testimony on his side.

Upon these facts, the defendant contended- that the plaintiff should be non suited, because it appeared by his own showing, that he had no interest in the cargo, and could not be-entitled to recover any damages, for the causes alleged’in the declaration. This -motion was overruled by the presiding Judge, and the defendant excepted to the- decision.

The counsel for the defendant then objected to all the evidence, which tended to show that the cargo belonged to *Living,*upon the ground that such proof did not support the *declaration;*but this objection was also overruled.

The Chief Justice charged the jury, that although the issues formed by the pleadings, were not in *form*upon the unseaworthiness of the vessel, yet that they necessarily involved that question. That if. the damage_s, sustained by the vessel, could have been repaired at- an expense justifying, such reparation, then that the owner was bound to repair and send her on the voyage ; if she could not .be so repaired, then that she was lost through the mere perils of the sea, *unless she was:so rotten and unsound, as not to admit of the necessary repairs,*in which case the loss could not be imputed to the mere perils of the seas.

Upon the question of damages, the Chief Justice desired the jury, (if they should find a verdict in favor-of the plaintiff,) in the first place, to ascertain the difference between the-invoice prices of the articles shipped, and the net amount of the sales of the same articles after they were delivered to the plaintiff, or his agents ; and in the second place, the difference between the net amount of said sales,, and the prices which the articles would have brought-at Omoa, leaving the amount of damages to be fixed by the court upon a case made. This suggestion, as to the .damages, being assented to by the parties, the jury returned a verdict for 2,500 dollars in favor of the plaintiff; estimating the loss of the market at *395the port of destination, at 1,500 dollars, and the actual loss by the sale, at 1,000 dollars.

Either party having had leave to make a case upon the record and facts, the defendant accordingly prepared one, which each party had leave to turn into a special verdict or bill of exceptions.

The cause was now argued by *Mr. Ketcham,*and *Mr. Sullivan,*for the defendant, and by *Mr. Mason*and *Mr. P. W. Radcliff,*for the plaintiff.

For the defendant, it was contended, I. That the plaintiff, by omitting to reply to the traverses set forth in the *pleas,*had admitted the truth of the matters therein contained, as stated by the defendant, and that the Judge mistook the issue joined by the pleadings. *[Stephen on Plead.*188. 209. 234. 215. 220. 228. 1. *Saund.*22. *n. 2.*1. *Chitty on Plead.*596. 8 *Cowen’s R.*653. 716. 1. *Phil. Ev.*141. 3. *Cranch’s R.*187. *Doug.*733. 3. *Easts’ R.*192.]

II. That the declaration was not supported by the proof. The testimony showed that the cargo of the vessel belonged to *John Living,*and not to the plaintiff The declaration is in the name of Wheelwright, and alleges, that the damages were sustained by *him,;*it is not supported by the proof, and the charter-party itself, shows the variance. [1. *Liv. on Agen.*12. *6th Binn. Rep.*228.]

III. That the loss of the profits, which might have been realized at Omoa, ought to be deducted from the amount of the verdict. [3. *Johns. Cas.*218. 3. *Caines’ R.*219.]

IV. That the verdict was against the evidence, and that the defendant was entitled to a new trial, upon the ground of newly discovered evidence. [2. *J. R.*124.] In support of this last point, the defendant read the affidavit of a witness, examined by him at the trial, stating certain facts, which were omitted by him *396on his examination, and tending to show, that the vessel was sea*-*worthy when she left New-York.

For the plaintiff it was contended, I. That the issues presented by the replications, were upon the fact, whether the voyage was broken up by the mere perils of the seas; and under those issues, it was competent for the plaintiff to prove, the unseaworthiness of the vessel, and the formal traverses, contained in the pleas, were such as to compel the plaintiff to traverse the matters contained in the *inducement*to these pleas. [1. *Saund. 22. n. 2. Arch. Plead,*202. 208. *Stephen*198. 211. 287. 258. 1. *Chit.*587. 597. *Com. Dig. Pl. C.*3. 13. *Mass. R.*520. 8 *Cowen’s R.*716.]

II. That whatever informalities or defects there might be in the replications, it was too late after verdict to object, to them, especially as the cause had been tried on its merits. [1. *J. R.*509. *Com. Dig. Pl. C.*1. *Chitt.*623. *Thos. Ray.*86. 2. *Saund.*439. 1. *Ib.*103. *n. a.*2. *J. R.*466.]

III. That the court having decided upon the *demurrer*to the fifth and sixth pleas, that the plaintiff was entitled to sue upon the charter-party, and that John Living was not; it followed, that all the damages recoverable for a breach of the covenant, contained in the charter-party, were recoverable by the plaintiff. [6. *Cowen’s R.*261.]

IV. That the plaintiff was entitled to recover for the loss of profits at Omoa, as well as for the loss attendant upon a resale of the cargo; and that the verdict was supported by the evidence. [8. *J. R.*164. 213. 14, *Ib.*170. 15. *Ib.*24. *Pothier on Ma. Con. sec.*1. *art. 2. p.*30. *also, Poth. on Ob.*159. *Cushing’s Trans.]*

V. That the defendant was not entitled to a new trial on the ground of newly discovered evidence, the testimony offered being that of a person examined on the trial, and cumulative merely, going only to impeach the testimony of other witnesses, and being *397otherwise insufficient, and relating to matters in the knowledge of t the witness, at the time of his examination as a witness in cause. [3. *J. R.*269. 8. *Cow. R.*223. 4. *Johns. R. 425. 5. Ib.*248. 2 *Caines’ R.*129. 8. *J. R.*64. 15. *Ib.*201.]

Oakley J.

The first count of the declaration in this case, sets forth a charter-party, whereby the defendant stipulated, that the brig Champion, of which he was the owner, should perform a voyage from New-York to Omoa, and back to New-York.. The count avers a performance of the covenants contained in the charter-party, on the part of the plaintiff, and then assigns, as a breach of the defendant’s covenant, that the said vessel did not proceed to the port of Omoa, but put into Norfolk, and that the defendant did not"despatch her on the said voyage, but neglected and refused to do so, contrary to the effect of the charter-party.

To this count, there was a special plea, which admits the charter-party, the lading of the cargo on board, the setting sail of the brig on the voyage, and her putting into the port of Norfolk, as stated in the count; but avers, that the vessel w:as so much damaged by the perils of the sea, that it became necessary for the safety of the cargo and crew, that she should put into the nearest port, and that she did put into Norfolk as a port of necessity; that while there she was examined, to ascertain the repairs necessary to be made, to enable her to proceed on the-voyage; that it was found necessary for the benefit of all concerned, that she should be sold, and that she was accordingly sold, and that “ so, and not otherwise, the *“*voyage aforesaid, from New-York to Omoa, was, by the mere *“*perils of the sea, broken up and prevented ;” *without this,*that the said vessel ought to have proceeded from Norfolk, on her said voyage, and that the defendant ought to have despatched her on the voyage, and that he neglected and refused so to do, &c.

To this plea, the plaintiff replied, and admitted the injury to the vessel, by the perils of the sea, and her putting into Norfolk as a port of necessity, and that the voyage was there broken up and prevented, but *averred,*that “ the said voyage was not broken up “ and prevented by the mere perils of the sea, and not otherwise,” in manner and form, as alleged by the defendant, *without this,*that *398the vessel was examined at Norfolk, to ascertain the repairs necessary to enable her to proceed, and it was found necessary to sell her, and that she was sold as alleged by the defendant, and concluded to the country.

At the trial of the cause, the Judge held that the issue joined by these pleadings was upon the fact, whether the voyage in question was broken up and prevented by the mere perils of the sea, and that it involved necessarily the inquiry, as to the seaworthiness of the vessel. The defendant now contends, that the issue really joined, was embraced in the allegation contained in the formal traverse in the replication, to wit, whether it was found necessary, upon an examination of the vessel at Norfolk, for the interest of all concerned, to sell her, and whether she was sold accordingly, and that by the state of the pleadings, the seaworthiness of the vessel was admitted by the plaintiff. If the position of the defendant is correct, it is clear, that the issue joined is not only an immaterial one, but that there has been no trial of it, and that the present verdict cannot stand.

It seems to be a well settled rule in pleading, that “ where a “ material point alleged by one party, is fully confessed and avoided,—that is, when the other party sets up a matter consistent with “ such allegation, but which if true is an answer to it, then he “cannot also traverse it.” [1. *Saund. 22. n. 2.]*In the case now before us, the material allegation in the declartion, assigningthe breach of the defendant’s covenant is, that the vessel did not proceed to Omoa. The defendant’s plea admits the fact, but sets up by way of avoidance, a number of circumstances, all resulting in the general and precise allegation, that the voyage was broken up and prevented by the mere perils of the sea. After thus admitting the actual breach of the covenant, as set forth in the declaration, and setting up a ground of legal excuse for such breach, it was not competent for the defendant, in any special traverse, to question the fact of such breach. Nor do I consider the plea of the defendant as in truth doing so. The special or formal traverse avers, that the vessel ought not to have proceeded on the voyage to Omoa, and that the defendant ought not to have despatched her on such voyage. These averments are clearly matters of law, and are *399not under any circumstances traversable, and must be rejected altogether.

It is further averred, that the defendant did not neglect and refuse to despatch the vessel on her voyage. This allegation is not in terms inconsistent with the fact before stated, that the vessel did not proceed to Omoa, but that the voyage was broken up at Norfolk. It in truth amounts to nothing more than saying, that the defendant did not neglect or refuse to despatch the vessel, because he was released from the obligation to do so, in consequence of the injury sustained by the perils of the sea. If the averment is to be considered as equivalent to an allegation, that the vessel did proceed on her voyage to Omoa, then it is entirely repugnant to, and inconsistent with the previous averments of the plea. The whole plea is founded on the admitted fact, that the voyage was not performed, and the defence is rested' on the ground that there was a legal and sufficient excuse for not performing it. I consider the averment, that the defendant did not refuse to despatch the vessel, after admitting that the voyage was broken up at Norfolk, and assigning the fact of sea damage as the reason for breaking it up, as altogether immaterial, and rendered senseless and unmeaning.

The rule is, that the *inducement*to a special traverse is not in general traversable, yet when the special traverse is not to the point, or substance of the action, or in other words, is immaterial, the other party may pass it by, and traverse the inducement. *[Arch. on Pl.*208.] This rule seems to be exactly applicable to the present case. The averment contained in the special traverse, that the defendant did not refuse to despatch the vessel,.presented no sensible or material issue to the opposite party, and there could have been no trial, ón such an issue, of the merits of the case, to wit, of the sufficiency of the excuse of the defendant, for breaking up the voyage.' Under such circumstances, it was proper for the plaintiff to- pass by that averment, and take issue on any fact alleged in the inducement, which involved, the whole ground of the defence. The fact was, that the voyage was broken up by the mere perils of the sea; on that the *400plaintiff has taken a precise and formal issue, but has added to the - replication, without any necessity or object, as far as I can discern, a special traverse, denying the fact alleged in the inducement to the plea, that the vessel was examined at Norfolk, and that it was found necessary to sell her, &c. This special traverse is manifestly as unnecessary and immaterial, as that contained in the plea. It could form no issue upon the merits of the controversy, for-it could never have been determined on such an issue, whether the *necessity for*selling the vessel, arose from sea damage only, or from that and unseaworthiness combined, and a verdict on an issue so framed, would have decided nothing. This special traverse, therefore, in the replication, being informal and immaterial, may be disregarded.

Neither party having demurred-to the pleadings of the other, on the ground of informality or repugnance, it is the duty of the court to look at the record as it stands, and ascertain, whether any material issue appears upon it, and if such a one is found, to confine the parties to it on the trial, rejecting all immaterial averments. I think the Judge in the present case, was correct in considering the special traverse, both in the plea and replication, as informal and immaterial, and in confining his attention to the only fact stated in the plea, and put in issue by the replication, which fairly opened the door, for a full investigation of the merits of *the*controversy between the parties.

I have not thought it necessary to examine the question, as to the fourth special plea, (which is to the second count of the declaration,) and the replication to it. If my view of the issue, under the pleading to the first count, is correct, the verdict being general, and the evidence in the case applicable to it, the plaintiff is entitled to judgment, although no issue, or an immaterial one, was joined under the fourth plea.

The second principal point involved in the case, relates to the rule of damages. It is contended, by the plaintiff, that he is entitled to recover the difference between the prime cost of the goods at New-Yorlc, and the net value of them at the port of destination. The defendant contends, that the true rule, is the difference *401between the prime cost at New-York, and the net amount, for which the goods were actually sold at Norfolk, after the voyage was broken up.

In *Watkinson v. Laughton,*[8 *J. R.*213,] there was an action of assumpsit on a bill of lading, signed by the defendant as master of the ship. The goods were shipped at Liverpool for New-York} and on the arrival of the vessel, it was found that a part of the goods had been embezzled, but without any fault on the part of the captain. It was contended by the defendant, that the true rule of damages, was the *invoiceprice*of the goods. The plaintiff claimed their value at New-York. The court held, that the defendant must answer for the goods, according to their clear net value at New-York, and they say, that this rule is in furtherance of the policy of the marine law, which holds the master responsible as a common carrier, and *Spencer J.*remarked, that the policy of the law, in like cases, in making the master liable, is to induce him to employ honest men in his service.

In *Amery v. M'Gregor,*[15 *J. R.*24,] the action was assumpsit, on a contract to transport goods from Liverpool to *New-Orleans.*The court, in that case, recognized the rule of damages adopted in *Watkinson v. Laughton,*and sustained the verdict of the jury, which gave the plaintiff eighty per cent, advance, on the invoice prices of the goods, being the value of like goods at New-Orleans. In *Brachett v. M'Nair,*[14 *J. R.*170,] the defendant agreed to forward, for the plaintiff a quantity of salt from *Oswego*to *Queenston.*He failed to perform the contract, and the rule of damages, was the difference between the value of the salt at Oswego and at Queenston, and the court say, that such a rule was no more than giving an indemnity to the plaintiff, for the injury sustained. In these cases, the Supreme Court seem to have settled the rule, which must govern us in the present instance. The contract in the case now before us, was, that the vessel should proceed to Omoa, and there deliver her cargo. That was the place to which both parties looked for the completion of the contract, and the direct injury sustained by the plaintiff, was the loss of the increased value of the goods at their destined port. I am unable to distinguish this case, in principle, from those above cited.

*4023. The defendant also contends, that the proof in the case showy, that the goods laden on board of the brig, under the charter-party, were the property of one *Living,*and not of the plaintiff, and that there can be no recovery, by the plaintiff, for damages sustained by the failure of the defendant to transport these goods to Omoa. This point was formerly before us, in this cause, on a demurrer to a plea, setting up the ownership of Living in the goods, and presenting the question directly, whether the present plaintiff could sustain an action, on this charter-party, for the benefit of Living. We held that he could. The point having been adjudged in this court, must be considered as disposed of here. If it were otherwise, the question could never arise in the form in which the defendant now presents it. The lading of the cargo on board, by the plaintiff under the charter party, is averred in the declaration, and the fact is admitted in terms by the plea. It would not be competent, under such a state of the pleadings, for the defendant to set up or prove, that the plaintiff had no interest in the cargo.

4. It is also contended, that the verdict is against the weight of evidence. On this head it is sufficient to remark, that there was much conflicting proof, all of which was'fairly submitted to the jury, and it is, therefore, a case in which their verdict ought to conclude the parties.

*5.*The defendant also moves for a new trial, on the ground of newly discovered evidence. Without remarking on the singular circumstance, that the witness, by whom the newly discovered evidence is to be given, did not disclose the facts now sworn to be within his knowledge, at the trial, when he was called to give his opinion as to the state and condition of the vessel, it is sufficient to say, that the evidence which is said to be newly discovered,is strictly cumulative, and cannot, therefore, upon the authority of numerous cases, decided by the Supreme Court, be the ground of granting a new trial.

That part of the foregoing opinion, which relates to the rule of damages, was the opinion of Judge Oakley merely, and not that of the court. The court gave judgment, in favor of the plaintiff, for 1000 dollars, being the difference between the actual sales *403and ’the invoice price of the goods, the loss of the market at Omoa, being deducted from the verdict of the jury. The loss on the sale of the goods, at Norfolk and New-York, was considered as the true rule as to damages, upon the ground that there was no fault or fraud, on the part of the defendant, from which the loss arose, and that the case shows only a breach of the implied warranty of seaworthiness.

*Judgment in favor of the plaintiff for*1000 *dollars.*

[A. G. Rogers, *Att'y for the plff.*J. L. Mason, *Att'y for deft.]*

Note.—See Rogers v. Niagara Ins. Co. ante. p. 86.