NEW-YORK, thrown into the sea, for the preservation of the ship, and the refidue of the cargo, which arrived in safety. May 1803. Smith & Stanley V. ther. : Several eminent brokers, underwriters, and merchants were examined in this caufe, and they all uniformly teftified, that Wright & ano goods on deck, if loft, are paid for by the underwriters on those goods, without contribution from the affurers of the veffel or other parts of the cargo. That, there was no inftance of an average or contribution allowed, when a lofs happened in this way that, they never knew of any fuch cafe occurring between an owner of goods on deck and the owner of the veffel. Goods on deck always pay a higher premium, even in fummer double, in winter, about 7 to 3, and lefs freight than goods under deck the freight is lefs by one half, or twothirds, or thereabouts; but always lefs. That, they never before heard of a demand of this kind made against the owner of the veffel by the shipper of goods: that, the freight of goods on deck is lefs than when below, because they are not confidered as at the risk of the owner of the veffel. One merchant faid, he once owned goods on deck, which were loft by jettison; and being uninfured, he claimed nothing from the owner of the veffel or the other part of the cargo. He conceived it to be the general understanding, that, for goods ejected from the deck, no contribution is to be made by the owner of the veffel or of the other goods. The counsel for the plaintiff gave their confent, that if, subsequent to the trial, any inftances of ufage could be afcertained by affidavit, they fhould be added to the cafe. A verdict was found, by confent of parties, for the plaintiffs, for one thousand dollars, fubject to the opinion of the Supreme Court, on the law, and on the admiffibility of the preceding teftimony. If the court gave judgment for the plaintiffs, and there should be any controversy, as to the real fum due, it was to be referred to indifferent perfons to liquidate the fame. Per curiam. The plaintiffs fhipped on half freight, on the deck of the defendants' veffel, twelve bales of cotton for Liverpool; which, for the prefervation of fhip and cargo, were, in a ftorm, thrown overboard; and the question is, Are they entitled to general average? It is conceded, that they are not that, the fhippers of goods under hatches, and the infurers on fhip and cargo, are not liable to contribution V. on account of their prefumed ignorance of any part of cargo NEW-YORK, being placed in fo perilous a fituation. But it is infifted, May 1803. there is not the fame ground of exemption for the fhip-owners, Smith & Stanbecause fuch fact is to be prefumed within their knowledge; ley and they are benefited by the extra freight. If this reafon- Wright & anoing be correct, its effect would be to make the fhip-owners infurers of all goods laden on deck, without premium, and at half freight; which certainly would be the height of injuftice. It is fufficient for our purpose, that the ufage has been against the allowance of average to goods placed on the deck of a veffel. This is proved to be the cafe, from the testimony of feveral infurance-brokers and merchants, of long ftanding among us; fome of whom carry it back as far as thirty years; a period however, too short, it is faid, to establish an ufage. The true teft of a commercial usage is, its having exifted a fufficient length of time to have become generally known, and to warrant a prefumption, that contracts are made in reference to it. This appears to be the cafe in the present inftance. We are therefore, of opinion, that judgment be, for defendants. Stephanus Miller against Reuben Drake. ther. The ftatute of frauds does not require the agreement to make a convey ance of lands to be fet forth in the declaration. A contract for third perfon, will fupport an action by him ERROR on a certiorari from the ten pound court. It appeared, from the juftices return, that the plaintiff had agreed with the defendant to attend at a certain place, to receive a conveyance of some land from the defendant and his wife, to one Rhoam. The proceedings below were by the the benefit of a present defendant, to recover damages, for the now plaintiff's non-attendance, according to his engagement. The declaration stated, that the "defendant did, together with his wife, "attend at the place appointed, ready prepared and offering "to execute to the faid Jacob Rhoam a conveyance, &c. ac"cording to the aforefaid agreement." There was also a count for work and labour done with the defendant's waggon and horfes. Per curiam. The errors affigned, and relied upon by the plaintiff, are thefe: ift, That the action before the justice was founded on an agreement for the fale of lands, and it does not appear that with whom the contract is made. 66 offering to ex"ecute a con veyance, ac"cording, &c. "but that defen"dant did not "attend, and has "refufed," is a fuflicient offer to perform, by the plaintif NEW-YORK, there was any note in writing, of that agreement; which was therefore void, by the ftatute of frauds. May 1803. Miller Drake. Cafe v. Barber, 1 Raym. 450. Bull. 279. 2d. That the promise by Miller, was for the benefit of one Rhoam, a third perfon; and therefore, without confideration as to him; and for that reafon, alfo void. 3d. That there was no performance of the contract on the part of Drake; it not being alleged that he offered a deed executed, or ready to be executed. Although The firft exception is clearly not well taken. the ftatute of frauds requires a note in writing, to support a contract respecting the fale of lands, it is not necessary the writing fhould be fet forth in the declaration; and it is fufficient if it appear in evidence. The ftatute has not altered the form of pleading, which remains as it was at the common law. 2. The fecond exception, we think, is equally untenable. The action was founded on mutual promises; and the one promife was the confideration of the other. It was not neceffary that the act promised to be done by Drake, should appear to be immediately beneficial to Miller, in order to fupport the obligation of his promife. It was fufficient that its performance would be detrimental to Drake, or deprive him of a right which he before poffeffed. An injury to one party, or a benefit to another, is fufficient confideration for a promife. By the agreement in this inftance, Drake was to Qy. If fuch convey to another* his title to certain lands, in confideration other might not of which, the promife on the part of Miller, was made; and an action. Dal that confideration was fufficient. have maintained ton v. Poole, 1 Vent. 318.Mar non, I Bof. & 219. 8 Mod. 3. With refpect to the third exception, we hold the offer chington v. Ver- to perform is fufficiently averred in the declaration. It is aPull.ror. n.(c.) verred that Drake and his wife attended at the time and place See alfo Comb. appointed, "ready prepared and offering to execute" the convey117. Martin v., ance "according to the faid agreement ;" and that Miller did Hinde, Cowp. not attend; and that he has refused to accept the fame, and 457. See 1 Lex to perform the agreement on his part.† This averment was fubftantially fufficient, and the manner in which the tender or offer to convey was made, was matter of evidence on which the juftice has decided, and which cannot appear on the re¡ cord. Mer. Amer. 372, 3. the cafes there cited. We are therefore, of opinion, that none of the exceptions are well taken. James Weaver against Elijah Bentley. NEW-YORK, May 1803, J. Weaver V. E. Bentley. If a perfon bind himself under hand and feal to do a certain act for a eration, and he fail, affumpfit certain confid will lie to recover back the THIS was an action of affumpfit to recover back the confideration paid on an agreement under feal in the following words" November the 26th, 1796. Know all men by "these presents, that I, Elijah Bentley, do bind myself to procure for James Weaver, Lot No. 67, joining Ballcock's on "the west, which lot I am now in poffeffion of, which I "promise to procure fo far as this, on these conditions, that " is, a lease to be either three years rent free, then to pay the intereft of one hundred and fixty pounds yearly, for the "term of ten years, then with paying one hundred and fixty confideration "pounds, to have a deed for the fame lot, containing one "hundred acres, which leafe I promise to deliver by the first "day of June next, and then if not called for, whenever called "for. The condition of this obligation is fuch, that if I do not "deliver the faid leafe, the two fixty pound notes, which are "dated November the 26th, 1796, which I have against James "Weaver, shall be of none effect. As witnefs my hand and ❝ feal. "ELIJAH BENTLEY. (L. S.)" The caufe was tried before Mr. Juftice Thompfon, at the circuit court for the county of Herkimer. The plaintiff produced in evidence the agreement and affidavits of various payments by the plaintiff. The counfel for the defendant objected to the plaintiff's right of recovering in this form of action; infifting that the agreement was under feal, and imported a covenant, and therefore affumpfit would not lie. His honour, after hearing counfel, directed a verdict to be taken for the plaintiff, fubject to the opinion of the court on the point relied on by the defendant. His honour the C. J. and all the Judges but Livingfton J. concurred in the following determination. Per curiam. The defendant covenanted to procure for the plaintiff within a given time, or on demand thereafter, a leafe for certain lands, three years free of rent, then to pay the interest of £.160 annually, for ten years, in lieu of rent, and at the expiration of that period, to have a conveyance of the fee on payment of the principal fum, in default whereof, two paid. NEW-YORK, notes of fixty pounds each, given by the plaintiff to the defendMay 1803. ant, were to be void. The plaintiff made certain payments in money and farm stock to the defendant, who failed to perform his covenant and the plaintiff thereupon brought affumpfit; and the queftion now is, whether the action will lie or the plaintiff be compelled to refort to his covenant. Weaver This cafe is fo loosely drawn that it fcarcely affords fufficient ground for a decifion. It is not stated for what the notes, money or ftock were given; prefuming them to have been the confideration of the covenant, the queftion then will be whether the defendant having failed to perform on his part, the plaintiff may difaffirm the contract and resort to his affumpfit to recover back what he had paid. We are of opinion he had his election either to proceed on the covenant and recover damages for the breach, or to difaffirm the contract, and bring affumpfit to recover back what he had paid on a confideration which had failed. Judgment therefore must be for the plaintiff. Livingston J. Two questions were fubmitted to us in this cafe. 1. Do the terms of the contract import a covenant? 2. Can the plaintiff waive covenant, and bring affumpfit te recover the confideration paid for the land? In answer to the firft it is only neceffary to state, that the defendant "binds himself" under feal to procure for plaintiff a certain lot of land, and "promises" to deliver the lease by a certain day. The words " bind and promife" create a covehant as ftrong as any which could have been used. It follows then that an action of covenant will lie on the inftrument on Bentley's non-performance, to recover back all that has been paid. When that is the cafe the party must rely on the fecurity he has taken, there being no neceffity for the law to imply a promife different from the one contained in the terms of the contract. Promifes in law exift only where there is no exprefs ftipulation between the parties-thus • Touffaint v. in 2 Term. Rep. 100,* where a surety had taken a bond of indemnity from his principal he was not permitted to refort to an action of affumpfit for the money he had paid. This is a ftronger cafe, for if the prefent fuit be maintainable for the money paid in confequence of this covenant, I fee nothing to prevent the plaintiff from bringing an action on the inftrument Martinant. |