#### Richard Higgins *versus*Jacob Soloman.

The defendant chartered a vessel of the plaintiff for a voyage from New-York *to*Gibraltar, thence to Santa Cruz in the island of Teneriffe, thence to Havannah, and from H. back to New-York. In an action upon the charter-party, the declaration averred a *general performance*of the voyage described in it, and also a specific and particular performance, alleging that the vessel proceeded to Gibraltar and to Vera Cruz, thence to Havannah, &c.

*At*the *trial, it*appeared *that the*defendant put a supercargo on board the vessel, who acted as his agent during the voyage. That the vessel arrived at Santa Cruz as stated in the declaration ; but instead of proceeding *directly*to Havannah from Vera Cruz, she first went to *Oralava,*(a port on the west side of Teneriffe,) at the request of the supercargo, and for the benefit of the defendant, and from thence to Havannah.

Held, that the declaration was supported substantially by this proof, and that there was no variance to furnish ground for a nonsuit. Held also, that the declarations of *the supercargo accompanying*his acts, might be given in evidence as part of the *res gestee,*he being the agent of the defendant.

This was an action of covenant, upon a charter-party, bearing date the 6th of September, 1826. The defendant, it appeared, chartered of the plaintiff, as agent of the owners, the brig Emblem, (of which the plaintiff was master,) fora voyage from New-York to Gibraltar, thence to Santa Cruz, in the island of Teneriffe, thence to Havannah, in the island of Cuba, and from thence hack to New-York. By the terms of the charter-party, the vessel was to receive a cargo at each of the above named ports, to be transported from one to the other in the order in which they are named, the charterer paying 3000 dollars for the use of the brig during the voyage. The vessel was to he allowed 60 lay-days for receiving and discharging her cargoes; and, if a longer time were required by *the freighter,*he was to pay demurrage, at the rate of twenty dollars a day for every day the vessel might be detained. Of the freight, 500 dollars were to be paid at Gibraltar, 500 at Santa Cruz, 200 at Havannah, (if required,) and the balance on the return of the vessel to New-York. It was also stipulated, that “ a supercargo should have his passage free in the cabin, he finding his own provisions.”

*483The declaration set forth the charter-party at length, and averred that the vessel received her cargo at New-York, accord- ■ mg to the terms of the agreement; transported, and delivered the same at Gibraltar; received on board a second cargo for *Santa Cruz, and delivered the same there;*received on board another cargo at Santa Cruz, delivered it at Havannah; received onboard a fourth cargo there, and returned with it to New-York. A*nd*although the plaintiff had, at all times, since the making of said “ charter-party, well and truly performed, fulfilled, and kept all thin gs in the said charter-party contained, on his part and behalf to be performed” &c. yet the defendant kept the said brig on demur-rage, at New-York, for the space of six days, over and above the lay-days; and neglected, and refused to pay the balance due upon the charter-party, amounting to 1600 dollars.

The defendant pleaded, 1. JVbra *est*factum. 2. That he did not keep the vessel on demurrage at New-York. 3. That he had paid the said sum of 1600 dollars, on the 24th day of May, 1817, upon the return of the vessel to New-York. 4. That the plaintiff did not proceed with said vessel from Santa Cruz to Havannah but, on the contrary, without any reasonable or probable cause, proceeded from Santa Cruz to another port or place in the island of Teneriffe, called Oratava, detaining the vessel there for the space of 30 days, “ by reason of which *deviation*from the “ voyage in the said charter-party mentioned,” the defendantwas “ disabled from loading or sending alongside of said brig at Havannah, a full homeward bound cargo.”

The plaintiff joined issue upon the first, second and third pleas, and replied to the fourth, by protesting, that the vessel did not proceed from Santa Cruz to Oratava, and that the plaintiff did not, without reasonable cause, detain her there; and denying that the defendant was, by reason of any such delay, disabled from loading or sending alongside the said brig, a full homeward bound cargo: and this, he prayed, might be inquired of by the country;

At the trial of the cause, it appeared that the defendant put one *Pritchard*on board the vessel as a supercargo, and that he continued on board during the whole voyage. That the brig sailed from New-York on the first of October, 1826, for Gibraltar, *484and arrived there on the 4th of November; departed from Gibraltar on the 29th of the same month, and arrived at Santa Cruz on the 18th of December. The supercargo, finding it difficult to procure either freight or passengers at Santa Cruz, persuaded the plaintiff to proceed to Oratava, on the west side of Teneriffe, for the purpose of procuring them there. The vessel accordingly left Santa Cruz on the 10th of February, arrived at Oratava on the 15th, took on board there, thirty passengers, together with a quantity of brandy; departed on the 19 th, and arrived at Havana on the 27th of March. The lay-days expired at Santa Cruz, and the vessel sailed from Havana on the 29th of April, with about one-half or two-thirds of a full cargo on board, and arrived at New-York on the 13th of May.

It was stipulated in the charter-party, that the freighter might have all surplus room in the cabin, for the use of passengers, by paying the master 200 dollars, over and above the amount of the freight; .and it appeared by the evidence, that the plaintiff received that sum for going to Oratava. All the money paid by the passengers was received by the supercargo.

The plaintiff, for the purpose of proving that the vessel proceeded from Santa Cruz to Oratava by the direction of *Pritchard,*gave in evidence his declarations made at the time; and to this testimony the defendant objected. The Chief Justice, (before whom the cause was tried,) ruled, that the declarations of Pritchard, accompanied by his acts, might be given in evidence as part of the *res gestos.*That if the defendant denied the authority under which Pritchard appeared to act, he could call him as a witness, or show his want of authority by other proof. But as he was on board during the whole voyage, *acting*as supercargo, the jury might infer, that he was the agent of the defendant, until the contrary was shown. To this opinion the counsel for the defendant excepted.

After the evidence oh the part of the plaintiff was closed, the defendant moved for a nonsuit, upon the ground of a variance between the declaration and the proof; the declaration alleging a direct voyage from Santa Cruz to Havana, whereas, in point of fact, the vessel proceeded to Oratava, and was detained there a *485considerable time. This motion, however, was denied, with liberty to the defendant, to move to set aside the verdict if in favor of the plaintiff.

As there was some controversy as to the weight which ought to be attached to the testimony of one of the witnesses for the plaintiff, and also as to the amount due, (the plaintiff having exhibited his accounts,) the cause was summed up for both parties upon the evidence. The Chief Justice then charged the jury, that if the vessel proceeded to Oratava, with the assent of the supercargo, for the benefit of the charterer, that that deviation would not defeat the plaintiff’s right of recovery. That the supercargo having been the agent of the defendant, would be presumed, in the absence of all proof to the contrary, to act for the benefit of his employer; and that in this case, his object seemed to be, to ob tain freight and passengers, which could not be procured at Santa Cruz. That as to the effect of the deviation, the defendant had pleaded, that it had hindered him from procuring a full cargo at Havana, but he had offered no proof to support this plea.

The jury returned a verdict for 1,463 dollars in favor of the plaintiff, and the defendant, having tendered a bill of exceptions, now moved for a new trial.

The cause was argued by *Mr. D. Graham*for the defendant, and *Mr. J. Anthon*for the plaintiff.

*Mr. Graham*for the defendant.

The plaintiff has, by his own showing, broken the contract; and he cannot, therefore, recover under it. He cannot introduce a parol agreement, varying the terms of the covenant, and yet recover in this form of action. The plaintiff must recover, if at all, upon his covenant,—but his own proof shows that the stipulations of that covenant have never been performed,—and another contract, made by the supercargo, was brought forward to support a declaration, founded exclusively upon the covenant. There is, therefore, a variance between the pleading and the proof, and the action must be defeated by the plaintiff’s own evidence. It might possibly be, that the plaintiff could recover upon a declaration, stating the facts as they actually occurred; but even then, *486it is doubtful, whether he could recover in *covenant*If a substantial variance be introduced into the agreement by parol, the covenant is gone, and the plaintiff must recover (if he recover at all) upon the new agreement.

Here there is no proof of a breach corresponding with the issues. Pritchard had no authority to change the course of the voyage, even if he was supercargo. *That*was fixed by the covenant, and the master had no right to deviate from the track pointed out. Suppose an insurance upon the voyage round, and a loss at Oratava,—co *aid the master justify the*deviation, by pleading the authority or assent of Pritchard *1*The *iter*of the voyage was marked out by the freighter, that it might not be under the control of any one. It *could*not be changed except by him or his agent, duly authorized; and if he changed it, then there can be no recovery, except by an action on the new contract. This has been settled by repeated decisions in the Supreme Court, and recently by the case of *Langworthy v.*Smith, [2 *Wend. R. p.*587. 1 *Phil. Evi. 433. 8 John. R.*392. 491. 12 *East,*583-4. *15 J. R.*200. 9 Ib. 115. 4 *Cowen’s R.*564.]

II. The declarations of Pritchard, as to the deviation at Teneriffe, were inadmissible.

*Mr. Anthon, contra,*for the plaintiff,

maintained the following points:

I. The voyage stipulated for by the charter-party, was actually performed; and the stopping at an intermediate port, for the benefit and at the request of the defendant, did not affect the question of performance.

II. That intermediate operation having been paid for by the defendant, was entirely out of the case; and in declaring on the charter-party, the intermediate voyage being *dehors*the instrument, and actually settled for, no rule of pleading required that it should be noticed.

III. The declaration contains a general averment of performance, in the usual form, and evidence of substantial performance, *487which was abundantly given in this case, fully sustained that averment It likewise contains a special averment of performance, setting forth the voyage as performed from New-York to Gibraltar, thence to Santa Cruz, thence to Havana, and then home. To this the objection is made, that the stopping at the intermediate port of Oratava, ought to have been averred. If this objection were correct, the general averment of performance being sufficient, or the special averment unnecessary, would be surplusage: and *utile per inutile non*vitiatur,

IV. Both the general and special averments are good, according to the rules of sound pleading, each being an averment of performance, *secundum subjectam materiem. [Ogden v. Barker,*18 *John. R.*87. *White v. Parker,*12 *East.*578.] The pleadings put this question to rest. The declaration sets forth the charter-party, avers performance, and assigns two breaches. I. Nonpayment of six days’ demurrage. II. Non-payment of balance of freight.

The defendant "pleads, j, *Non est factum;*2. No demurrage in arrear; 3. Payment of all the freight; 4. The intermediate voyage, as a deviation, whereby the defendant was delayed, and could not procure a full cargo at Havana.

The plaintiff joins issue on the 2d and 3d pleas, and to the 4th replies, that the defendant was not hindered thereby from procuring such cargo. All these issues are found for the plaintiff, and the defendant has no ground of complaint.

V. The supercargo was the general agent of the defendant. His declarations, accompanied by his acts during his agency, were correctly received in evidence.

Oakley, J.

This case comes before us on a bill of exceptions, by the defendant. The first objection, taken at the trial, was that the declarations and acts of *Pritchard*were improperly admitted in evidence.

It was clearly proved that he was sent on board the vessel, as the agent and supercargo of the defendant, and continued on *488board as such, throughout the voyage. His declarations and acts in the course of his business, as such agent, are clearly competent proof. The charter-party in question, provided that a supercargo might be put on board, and his authority, as the agent of the defendant, to detain the vessel on the voyage, “ on account of cargo or otherwise,” is clearly recognized in the instrument itself.

The second and principal objection was, that the proof furnished by the plaintiff, showed that the contract on his part had not been performed, and that he ought to be nonsuited on that ground. The variance alleged is, that the vessel instead of proceeding directly *to*Havannah, *from*Santa Cruz, went from the latter place to *Oratava,*in the same island, and from thence to Havannah. The objection appears to me, to admit of two answers.

1. The declaration sets out the charter-party, and avers, that the voyage had been performed. The defendant pleads 1st, *non est factum,*which plea, in an action of covenant, puts in issue only the execution of the instrument, and admits all other averments. *[Kane v. Sanger,*14 *J. R.*93.] The 2d and 3d pleas of the defendant are in answer to the averments, as to the breaches assigned in the declaration. The 4th plea sets forth the fact, that the direct voyage from Santa Cruz to Havannah, was departed from, and that the vessel was detained at Oratava, “ by means whereof the defendant was disabled from putting on board a full homeward cargo, *at*Havannah.” The replication to the last plea, admits the fact of the deviation from the direct voyage, and of the detention of the vessel at Oratava, and tenders an issue on the last averment in the plea, which issue is joined by the defendant.

Under this state of the pleadings, it was clearly incumbent on the plaintiff to prove, 1st, the execution of the charter-party, and 2d, the breaches assigned in the declaration. The burthen of proof, upon the issue joined under the 4th plea, (if deemed a material issue,) rested on the defendant. The question of performance on the part of the plaintiff, therefore, could not arise in the case, except under the general issue, and under that plea, the defendant cannot be permitted to show any failure of performance on the part of the plaintiff. The case of *Kane v. Sanger*seems to me to establish this doctrine clearly. There the action was on the *489covenant for quiet enjoyment in a deed. The declaration set forth the covenant and averred an eviction. The plea was *non est factum,*and the court held, that under that state of the pleadings, the plaintiff was not bound to offer any proof of the averments in his declaration, nor would the defendant have been permitted to question the fact of eviction, if he had not put it in issue, by a notice annexed to his plea. So, in the case now before us, the averment of performance of the voyage is admitted on the record, by the state of the pleadings, and that fact could not regularly be drawn in question at the trial. The same doctrine is also fully recognized in *Gardner v. Gardner,*[10 *J. R. 47,] and in Thomas v. Wood,*[4 *Cowen's R.*185.]

2. But if this were otherwise, Í am of opinion, that the evidence in the case, supports substantially the averment of the performance of the contract on the part of the plaintiff. The voyage from *Santa Cruz*to *Havannah,*was, in fact, made. The deviation to *Oratava,*and the consequent delay in performing the direct voyage, were the acts of the agent of the defendant, who, by the terms of the charter-party, had the right to detain the vessel at pleasure. But for his interference, we have a right to presume that the plaintiff would have literally fulfilled his contract, and he is fairly to be considered as being willing and ready, at Santa Cruz, to proceed, and as offering to proceed, directly to Havannah. Upon this view of the case, it seems to fall within the principles laid down by the S. C. *in Fleming v. Gilbert,*[3 *J. R.*531.] The defendant having himself prevented a literal performance by the plaintiff, shall not avail himself of a non-performance, which he has occasioned. A tender and refusal are held to be equivalent to an actual performance.

There appears to me, therefore, to be no weight in either of the exceptions taken by the defendant, and the motion for a new trial must be denied.

*Motion for a new trial denied.*

[E. Anthon, *Att’y for the plff.*D. Graham, Jun., *Att’y for the deft.]*

Note.—The Chief Justice expressed a doubt whether the plaintiff was not bound to declare upon the special circumstances of the case, showing the deviation by his *490pleading, as well as proof. But as the other two Judges were clearly of opinion that the verdict might be sustained, the Chief Justice acquiesced in their decision, and gave an opinion in accordance with it.