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

In an action of covenant on a charter-party, the declaration set forth, that the defendant had stipulated, that a vessel, of which hé was the owner, should perform a voyage from N. Y. to Omoa and back, for the plaintiff That all the covenants, on the part of the plaintiff were performed; but that said vessel, instead of proceeding to Omoa, put into the port of Norfolk, and the defendant did not despatch her thence, but neglected and refused so to do, contrary to the effect of the charter-party.

The defendant pleaded six special pleas in bar. The first and second, set forth in substance, that the vessel, while proceeding on her voyage, was 'so much damaged by the perils of the seas, that she put into Norfolk, as a port of necessity, where the plaintiff took possession of the cargo, and of the same ever afterwards retained possession.

The *fourth*plea, after admitting the charter-party, the sailing of the vessel, and that she put into Norfolk, &c., alleged that said vessel, while prosecuting her voyage, was so much damaged by the perils of the seas, that it became necessary, that she should put into the nearest port, and that Norfolk was, accordingly selected as a port of necessity. That while there, the said vessel was examined, to ascertain what repairs were requisite to enable her to proceed on her voyage, when it was found necessary, for the benefit of all concerned, that she should be sold, that she was sold accordingly, “ and so, and not otherwise, *“*the said voyage, was by the mere perils, of the sea, broken up.”

The fifth and sixth pleas alleged, that the plaintiff ought not to maintain his action, because the *cargo,*mentioned in the declaration, belonged to, and was laden on board of said vessel, for one *John Living,*for whom said charter-party • was made by the defendant, as his agent, *as appeared by the oyer thereof.*

Upon *demurrer*to these pleas, the *plaintiff*had judgment upon the first, second, fifth and sixth, and the *defendant*upon the *fourth.*

This was an action of covenant on a charter-party, bearing date the 13th of August, 1827, purporting to have been entered into, by and between the defendant, for J. D. Beers & Co., of the one part, and the plaintiff, *as agent for John Idving,*of the other part. The charter-party recited, that Joseph D. Beers & Co., being the owners of the brig Champion, had “ granted and to freight letten, to the party of the second part, the whole tonnage of that vessel, for a voyage from New-York to Omoa and thence back to New-York—and it contained the usual cove2 nants, providing that the vessel should, during the continuance *383of the voyage, be made and kept by the party of the first part, “ to the best of his endeavors, and at his own proper cost, tight, stanch and strong,” and sufficiently provided for such a voyage. The vessel was to receive her cargo at New-York, by a certain day, proceed with it to Omoa, and there take on board a return cargo for New-York ; and Mr. Living, was to have a free passage in her to Omoa.

The plaintiff, on his part, was to furnish a specified freight, for the outward, and a cargo of logwood for the homeward voyage. For the use of the vessel outward, he was to pay 450 dollars, and a certain sum per foot, for all the logwood brought home in her.

The declaration contained two counts: the first, after setting forth the terms of the charter-party, and averring a general performance, on the part of the plaintiff, of all things on his part, to be performed, alleged that the plaintiff furnished the said outward cargo, for the vessel, which was on the 27th of August, 1827, received by the master; who, on the same day set sail, and proceeded *toioards*the port of Omoa, &c. The breach assigned was, that the vessel did not proceed *to*Omoa, but on the contrary, before her arrival at that place, to wit, on the 18th of September following, proceeded to, and stopped at the port of, Norfolk, in the state of Virginia; and although the defendant ought to have despatched, and was then and there “ required, by the said plaintiff, to despatch and send the said vessel to said port of Omoa ; “ and although the said vessel ought to have proceeded from said “Norfolk, on her said voyage, yet the said vessel did not proceed, “and the said defendant did not despatch the said vessel, with her “said cargo, on her voyage aforesaid; but on the contrary,” the said defendant neglected and “ refused so to do against the will of the “said plaintiff, and contrary to the form and effect of the said charter-party, and the covenant of the said defendant in that behalf; “by means whereof, the said plaintiff lost sundry great gains “and profits, which would have arisen from the said cargo, if the “same had been carried to Omoa, and was also put to great ex- “ pense,” &c.

The second count, after setting forth the covenants of the charter-party, and the sailing of the vessel, with her cargo on board, *384assigned as the breach, “ that the said vessel was not made and “ kept by the said defendant, to the best of his endeavors, tight, “ stanch and strong, and sufficiently manned, tackled, provided “ and apparelled,” “ but on the contrary thereof, the said vessel, *“at the time of the commencement*of her said voyage, and during “ *the*same, was *rotten*and *unseaworthy, by*reason whereof she “ was unable *to*prosecute and continue her said voyage, and after *“*the said voyage had been commenced, the same was, afterwards “at Norfolk,” “on the 19th day of September,” “with the “consent of the said defendant, and against the wishes of the said “ plaintiff, *broken up and abandoned,”*&c.

The defendant pleaded six special pleas in bar. The first plea, after admitting the execution of the charter-party, the sailing of the vessel, and that she put into Norfolk, as alleged in the first count of the declaration, set forth as an answer to the breach specified therein, that while the vessel was on the high seas, pursuing her said voyage, she was, by the force and violence of “ the winds and waves, and by injuries from the perils of the seas, “ so much damaged” that it “ became necessary for the safety “ of the vessel, cargo and crew, that she should put into the “ nearest port, and thereupon the said brig made sail for the port “of Norfolk, as a port of necessity,” ”and arrived there on the “ 18th day of September, in the year last aforesaid, and the said “plaintiff, then and there received and took possession of the said *“*cargo,” and ever afterwards kept the same in his possession ; “ *without this,*that the said brig ought to have proceeded from said “ Norfolk on her said voyage to Omoa, and the said defendant “ ought to have despatched and sent said brig with her said cargo “ on her voyage aforesaid, and that the said defendant neglected V and refused so to do, against the will of the said plaintiff,” &c.

The second plea, which was to the second count, was exactly like the first, with the exception of the traverse, which, in this plea, formally denied the facts, as stated in the breach set forth in the second count.

The third plea admitted the charter-party, the lading of the cargo on board by the plaintiff, the sailing of the vessel and her putting into the port of Norfolk, as stated in the declaration, but *385averred that the said brig, while on the high seas pursuing her Said voyage, was, by the force and violence of the winds and waves, and by damages from the perils of the seas, so much injured in her masts, spars, sails and riggingfand so much strained in her upper works, and injured in her hull,” that thereby it became “ necessary “ for the safety of said brig, cargo and crew,” that she should put into the nearest port, “ and thereafter the said brig made sail for “ the port of Norfolk, as a port of necessity, and so, and not other- “ wise, put into the said port of Norfolk,” and arrived there the said 18th of September; and, while at Norfolk, the said vessel “ was duly examined with a view to ascertain the repairs “ expedient and necessary to enable her to proceed on her voyage, and it was found to be necessary “ to sell the said brig for the “ benefit of all concerned;” and thereafter the said brig was “ necessarily sold, and so, and not otherwise, the voyage aforesaid” “ was, by the mere perils of the seas, broken up and prevented ; “ *without this,*that the said brig ought to have proceeded from said “ Norfolk, on her said voyage to Omoa, and the said defendant “ ought to have despatched and sent the said brig, with her said “ cargo, on her voyage aforesaid, and that the said defendant “ neglected and refused so to do against the will of the said “plaintiff” &c.

The fourth plea, (which was to the second count,) followed the words of the third, down to the traverse, and then concluded *by*denying that the said brig was *not*made and kept by the said defendant “ tight, stanch and strong, and sufficiently manned, “ provided, tackled and apparelled, with all things necessary for “ said voyage ; and that the said brig, at the time of the com- “ mencement of said voyage, and during the same, was rotten “and unseaworthy, by reason whereof she was unable to prose- “ cute and continue her said voyage, and that after the said voy- “ age had been commenced, the same was, afterwards at Norfolk, “ with the consent of the said defendant, and against the wishes “of the said plaintiff'broken up and abandoned.”

The fifth plea was to the first count. It craved oyer of the charter-party referred to in that count, and after setting out *the*covenant at full length, averred that the plaintiff ought not to *386maintain his action, because the cargo, *“*in the said first count “ mentioned, *was owned by and laden on board of said brig or vessel, “jor ami on account of the said John Living,*in the said charter- *“*Party named.”

The sixth plea was in all respects like the fifth, except that being in reply to the second count, it was properly adapted to it.

The plaintiff demurred to the first, second, fourth, fifth and sixth pleas, and took issue upon the third.

The defendant having joined in the demurrers, the cause was argued by *Mr. John L. Mason*and *Mr. P. W. Radcliff*for the plaintiff, and by *Mr. George Sullivan*for the defendant.

*Mr. Mason,*in support of the demurrers, contended.

I. That the first plea did not answer one of the material allegations in the first count, viz. that the defendant was required by the plaintiff, to proceed on the voyage from Norfolk to Omoa. *[1 Saund. 28,*11 *J. R.*19, *Satterlee v. Douglass.*]

II. That the affirmative matter, stated as a defence in the first plea, was not inconsistent with the breach assigned in the first count of the declaration. *[Arch. Plead. 207.*9 *Johns R. 186. Mar. In. Co. v. Un. In. Co.*10 *East.*378. *Hunter v.*Prinsep.]

III. That the inducements in the second plea, did not contain matter sufficient to defeat the plaintiff’s action; and that an issue upon that matter, would be an immaterial one. *[Arch. Plea.*235.]

IV. That the fourth plea was defective inasmuch as it does not expressly state, that the sale of the vessel was rendered necessary, by the damage she sustained from the perils of the seas; nor does it state any facts, from which such a conclusion can legally be drawn.

V. That the fifth and sixth pleas are clearly bad. The charter-party was entered into by John Wheelwright, the plaintiff. The covenants were made by him on the one part, and to and *387with him by the defendant on the other part; John Living could never have maintained an action on the instrument. *[Stone v. Wood,*7 Cow. *R.*453. 2 *Ld. Raymond,*1418. 6 *J. R.*94.]

*Mr. Sullivan, contra,*contended,

I. That the deed produced varied from that declared on, and that the action could not, therefore, be maintained.

II. That the deed produced, was not the deed of the plaintiff *[Paley on Agency, 153.]*

III. That the plaintiff on the pleadings had no cause of action» and that the declaration was bad. That as the demurrers to the pleas were general, the defendant had a right to attack the plaintiff’s declaration, and if that should be found bad, or to vary from the deed produced on oyer, the plaintiff could not recover.— The deed declared on (said Mr. S.) is the deed of *John Wheelwright;*but the covenant produced, shows that the plaintiff was but an *agent*for Mr. Living, and that he executed the deed as such agent. This is a material variance, and fatal; but the deed is in no" respect, the deed of the plaintiff; he had no interest in the subject matter of the contract; he was a mere agent for another, who was himself to be on board the vessel, control its operations, and receive the benefit of the voyage. The deed was intended to be the deed of Mr. Living; it should have been executed in his name by the plaintiff, and the latter cannot maintain this action. [6 *J. R.*94. 2 *Caines*66. 2 *Ld. Ray.*1418. 2 *East.*142.]

IV. The *declaration*is bad. It does not set forth enough to form a breach. The allegation, in the first count, that the defendant was *required*to proceed on his voyage, is wholly immaterial. If the defendant was bound to proceed on the voyage, his being required to do so at Norfolk, could not add to his *obligation;*and the declaration is not aided by that averment.

V. But it is immaterial, whether the declaration is sufficient or *388not, since the fourth plea is unquestionably good. It is in form and substance like the third plea, on which the plaintiff has taken issue. If the fourth plea is bad, the third is bad also ; but the plaintiff has prudently taken issue upon that, and now makes an experiment, in the success of which he betrays a want of confidence.

The fourth plea admits, that the voyage was begun in good faith, and sets forth a sufficient reason why it was not prosecuted to a conclusion; it states, that the vessel being injured on her voyage, by the perils of the sea, was compelled to put into Norfolk, as a port of necessity, where she was examined; upon such examination, it was found necessary to sell her, and she was sold accordingly, for the benefit of all concerned. This plea also asserts, that the voyage was broken up by the mere perils of the seas, and denies that the defendant had not done all in his power to make the vessel stanch and strong, and denies that she was unseaworthy at the commencement of the voyage. The defendant by demurring, has admitted the truth of the plea, and has admitted also, that the voyage was broken up by the mere perils of the sea; and that the vessel being pronounced unable, from sea damage, to pursue her voyage, had been sold. If the plaintiff, by the pleadings, does not admit that the vessel *was*seaworthy at the commencement of her voyage, still the defendant has denied that she was *not*seaworthy at that time, and has therefore asserted the fact. It clearly then appears, that the voyage was broken up by no fault of the defendant, but from causes beyond his control. The misfortune falls upon him, under any aspect of the case, with sufficient severity,—for he is deprived of all freight, and his vessel is sold, as being unable to complete her voyage. The plaintiff on the contrary, received his goods, at Norfolk, in safety, and has little cause to complain.

*Mr. Radcliff,*in reply, was requested by the court, to confine his remarks to the *fourth*plea. In relation to the first and second pleas, therefore, he merely observed, that there was not enough stated in them, to enable the court to determine any material question, which the defendant sought to raise therein; they merely asserted, that the plaintiff received 1ns goods at Norfolk, *389without stating any reason why the voyage was not prosecuted to its termination. The plaintiff, for ought that appears, took possession of his goods at Norfolk, because they were abandoned by the defendant, and no inference at all, prejudicial to his claim, can be drawn from the facts of his having taken possession.

As to the parties to the contract, it is clearly a covenant, he said, between the plaintiff and the defendant personally ; no other persons are bound by it, but each of the contracting parties has made *himself*responsible for his covenants. An action in the name of *Living*could not be maintained, and of course, the present is well brought in the name of the plaintiff.

With regard to the fourth plea, it has not answered the allegation of the second count, (which is all important, and upon which the ultimate fate of the case may depend,) that *the vessel was unseaworthy at the commencement of her voyage.*The traverse contained in the plea, will not assist the defendant’s direct allegations of facts, nor aid what is defectively stated; it merely denies, that the vessel was *not*seaworthy, whereas, it should have asserted affirmatively as a fact, that she *was*seaworthy at the commencement of the voyage. In his traverse, the defendant merely *negatives*negative allegations, and nothing is put in issue by them. The traverse merely excludes a conclusion, and is in the nature of a *protestando.*As the plaintiff cannot take issue upon the traverse, so neither can the defendant aid a defective inducement by it. In this case, the inducement is a material part of the plea, and should state all the facts on which the defendant relies. *[Arch. Plead.*207, 8. 189, 90. 202. 4. 6. 9, 10. 238, 9. 235.]

The inquiry then is, whether the *inducement*presents a bar to the plaintiff’s right of recovery *1*It states that the vessel put into Norfolk of necessity; but it does not state that *that*necessity was occasioned by sea damage. It asserts no fact inconsistent with the allegation, in the declaration, that the vessel was unseaworthy when she left New-York. *Non constat,*but that the very necessity which caused the brig to put into Norfolk, was the direct consequence of her unseawortliy condition when she left New-York ; and we consider the fourth plea, therefore, as insufficient to bar the plaintiff’s right of recovery.

*390The Court gave judgment for the *plaintiff*on the first, second, fifth and sixth pleas, and for the *defendant*on the *fourth,*]ea*y*e party to amend his pleadings at discretion; the defendant, by withdrawing his insufficient pleas, and the plaintiff, by taking issue on the fourth plea.

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