Kinsman v. The New York Mutual Insurance Co.

His service had been in part performed: the vessel had been from San Francisco to the Islands, and had taken her cargo of guano on board at the expense of the ship owner, and returned to Callao for her final clearance. This service cannot be regarded as entirely without value if a vessel could there be found to take the cargo forward. There the Captain voluntarily gave up what he deemed the dry part of the cargo to the charterers, (Barreda & Brother,) and they sent it on by the Parana.

These facts are uncontradicted; 'they are proved by the plaintiff's witness, the Captain himself; and yet the jury have found that, "from any evidence submitted to them, the Master could not have sent that part of the cargo to the United States by any vessel, the use of which he could have procured at Callao."

And in consequence of that finding they have omitted to answer the questions, what would have been the expense of transhipment, and whether any freight would have been earned thereby, and whether the extra expense would have exceeded the moiety of the freight?

We do not find in the case any evidence showing what the expense would have been, nor what it would have cost if the Captain had forwarded the guano himself.

But the finding that no vessel could be procured is in palpable conflict with the fact that a vessel was procured, and the Captain voluntarily gave up the guano to the freighters, and they

sent it on.

What has already been detailed respecting the subsequent history of the residue of the cargo, and that it was in fact taken to China, and there delivered in good order, excepting from 25 to 30 tons, bears also on this same question of duty on the part of the Captain to procure another vessel and send that also.

To this is to be added that the burden of proof that no other vessel could be had, is held in Schieffelin v. New York Insurance Company to be on the plaintiff, and that to entitle himself to recover on the ground of the loss of the voyage, he must show that another vessel could not be obtained. (3 Kent Com., 210, 213; 2 Arn. on Ins., § 347, pp. 1139-1144; Shipton v. Thornton, 9 Ad. & El., 314.)

We cannot, it is true, say that, had the cargo been forwarded by another vessel, the loss of freight would not have exceeded a Bosw.-VOL. V.

60

Kinsman v. The New York Mutual Insurance Co.

moiety thereof, or that abandonment within the case of the American Insurance Company v. Center, (above cited,) would not have been justified. But the verdict of the jury is palpably wrong upon the main fact, that no vessel could be procured; or if its somewhat ambiguous language be taken to import only that no evidence had been given that a vessel could be procured, then the plaintiff failed in establishing this main fact, and no means are supplied of determining whether the loss was or was not constructively total. It may be very probable that it would have cost nearly as much to send the guano by another vessel as the plaintiff would have received, but that is not proved.

Besides, when the owners of the cargo accepted the undamaged portion of the cargo at Callao, the Master might have required the payment of freight pro rata itineris, if their acceptance was voluntary; and if they took it because the Master declined to take it forward, or to send it on by another vessel, then also it was the fault of the Master, and does not entitle the owners to say that no freight was earned as between them and the defendants. (2 Bosw., 195; 2 Duer, 204.) It cannot be that nothing was earned which would have been properly assigned by way of apportionment to the service rendered in going to the Islands and lading the guano, and bringing it to Callao. How much was so earned the Court cannot say, but the finding of the jury that no freight was earned, if it imports that this service was of no value or formed no aliquot part of the whole service which the plaintiff was to perform for the freight stipulated, was not warranted by the evidence. As the case stands, it seems to us that only a partial loss of freight was proved, and that enough is not shown to determine its extent or amount.

The finding of the jury that no freight was earned, is also in conflict with one of the instructions given by the Judge at the trial upon admitted facts.

The charter-party, after providing that the vessel should go from San Francisco, in California, to the Chincha Islands, and there load at the ship's expense-carrying any specie necessary to pay for the guano-any tools and bags for dunnage, free of freight, and deliver water required at guano ports free of charge; the crew to sew up the mouths of the sacks, and the owners of the vessel to pay all port charges, and that the vessel

Kinsman v. The New York Mutual Insurance Co.

should return, when all this was done, to Callao for final clearance for the United States; and after, also, stipulating that the freight to be paid shall be $15 per ton, then proceeds:

"The Master to be supplied at Callao with a sum not exceeding one-third of the freight, free of interest and commission, which is to be in part payment of the freight, at the exchange of twelve per cent premium, together with the cost of insurance on such⚫ advance. And should the charterers or their agents think fit to advance any further sum on the credit of the freight for repairs, stores and disbursements, such sums, with premium, interest, commission and insurance, to be considered in part payment of freight."

In pursuance of these provisions, the Master received from the charterers over $4,000. Whether this was equal to or exceeded the one-third of the freight above firstly mentioned, we have no data by which to determine. Out of the proceeds of the sale of the vessel the Master repaid this sum, on the claim of Barreda & Brother that, as the voyage was broken up, they were entitled to have it repaid as freight not earned.

On the trial, the Judge charged that the defendants would be entitled to have deducted from the amount of loss on freight "a ratable proportion of the value made by Barreda & Brother to the Captain, as so much freight earned by way of salvage." This language, though not very clear, we suppose imports that the sum of $4,000 so received was to be regarded as freight earned, and that the Captain had no right to refund it, and the charterers were not entitled to have it repaid.

This ruling is in conformity with the decision in De Silvale v. Kendall, (4 M. & S., 37,) in which the provision for part payment of the freight before the voyage was completed, was singularly like the present. If there is any difference, the present case is even stronger; for here, by charging the plaintiff with the premium of insurance, the charterers have, in the most decisive manner, indicated an intent to pay the freight to that extent absolutely, place that amount at the risk of the voyage, and so acquire an insurable interest therein. And every other reason assigned in De Silvale v. Kendall applies with equal force in this case. To the extent of one-third of the freight, the charterers were bound to regard it as a payment. They were neither to charge

Kinsman v. The New York Mutual Insurance Co.

interest nor commissions thereon. Whether an advance under the further clause beyond one-third would stand on a different footing, it is not necessary to say. That is called an advance on the credit of the freight, and is to be allowed, both interest and commissions-in that respect having more the appearance of a loan to the owners.

It is not, in strictness, a payment in advance of the whole service to be rendered, in which nothing has been done by the ship-owner that entitles him to be regarded as meritorious. Although freight is not regularly payable till the cargo is delivered, no rule of law forbids that the parties should stipulate to pay at successive stages of the voyage as the service is in part performed, and so each become sharer in the subsequent risk of the final completion of the voyage.

Indeed, under special terms used in the contract, a payment in advance has been held to be in consideration that the goods were received on board, and so not to be recoverable back, though the Vovage was broken up.

Here, for aught that we can say, the service performed by the plaintiff, down to the time the ship left Callao, was justly equal to the sum advanced. The payment then made was, according to the contract, to be payment, and not a loan; and the contract fairly imports that, to that extent, the risk of loss of freight was assumed by the charterers from that time. (See, on this subject, Andrew v. Moorhouse, 5 Taunt., 435; Saunders v. Drew, 3 Barn. & Ad., 445; Winter v. Haldimand, 2 id., 649; Manfield v. Maitland, 4 Barn & Ald., 582; Watson v. Duykinck, 3 J. R., 335; Phelps v. Williamson, 5 Sandf., 578; Ogden v. The Gen. Mut. Ins. Co., 2 Duer, 204.)

It is true that the jury have not attempted to find the amount to be recovered; but they have disregarded the instructions of the Court, and, in answer to a question which assumes that the advance by the charterers must be taken as payment on account of freight, have, nevertheless, found that no freight was earned.

The amount to be recovered, the Judge reserved for adjustment; but, without disregarding this finding, no allowance could be made for the freight so received.

Indeed, the whole verdict proceeds upon the idea of a total loss of both vessel and freight; and the necessary details to render

McCullough v. Colby et al.

an adjustment of the amount due on the policy on freight treated as a partial loss are not ascertained. And without some proof of the cost of forwarding the cargo by another vessel, they cannot be ascertained.

We think a new trial is necessary to the proper determination of the rights of the parties.

New trial ordered, costs to abide the event.

MCCULLOUGH, Plaintiff and Appellant, v. COLBY et al., Defendants and Respondents.

1. It is essential to the right of plaintiffs in a judgment to maintain an action to set aside a deed of real estate made by the defendant in such judgment, as having been made with intent to defraud creditors, that an execution should have been issued on such judgment to the Sheriff before suit brought.

2. Unless the complaint avers the fact of issuing such execution, it will not state facts sufficient to constitute a cause of action.

3. Although such an execution be issued after suit brought, that fact cannot be made a part of the plaintiff's case, either by amendment of his complaint or by supplemental complaint.

(Before HOFFMAN, SLOSSON and WOODRUFF, J. J.)

Heard, November 9; decided, December 10, 1859.

THIS is an appeal by Charles H. McCullough, the plaintiff, from a judgment dismissing his complaint. The action was tried before Mr. Justice HOFFMAN, without a jury, on the 21st of June, 1859.

The action was brought against John L. Colby and Mary Ann Colby, to set aside a conveyance from the former to the latter, as fraudulent and void as against the plaintiffs, who were judgment creditors of John L. Colby. Other persons, holding mortgages on the property, so conveyed, were made parties, but no personal claim was made against them, and no question arises in respect to them.

The Judge's conclusions of fact and of law are as follows:

"1. That the action was brought to set aside a conveyance of real estate made by the defendant, John L. Colby, to the defendant, Mary Ann Colby.