charge at a safe port in the United Kingdom or on the Continent, as therein mentioned, and deliver the same in the usual manner on being paid freight at and after the rate of 60s. per ton of 20 cwt. nett for sugar in bags, with 107. gratuity; and for other produce at a rate proportionate thereto, being in full for the round: the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers and navigation of whatever nature and kind soever, during the said voyage, excepted. The freight to be paid in the following manner:-150% on signing bills of lading at Cardiff, less interest for three months, and the costs of insurance; cash for disbursements abroad at the current rate of exchange, free of interest and commission, and the remainder on the delivery of the cargo, less discount for two months on half freight. The ship to be addressed to the charterers' agent abroad, paying one commission only of 37. per cent. on the amount of freight, either at port of loading or discharge, at merchant's option. The master to sign bills for each cargo at any rate of freight that might be tendered, without prejudice to that charterparty. The owners to have a lien on the homeward cargo for all freight and demurrage that might accrue thereon, to the extent of the bill of lading freight, but the difference, if any, to be paid at the port of loading by captain's draft on charterers, at usance, which they agree to accept and pay on consignee at loading port agreeing amount. It was also understood that if the outward cargo did not amount to the same gross quantity as the homeward one, a corresponding abatement was to be made in the freight. Sufficient coal for the ship's use to be taken, say to the extent of 16. per cent. of the outward cargo.-Averments: that the said ship afterwards, in pursuance of the said agreement, did proceed to Newport as ordered, and did there load from the factors of the defendants a full and complete cargo of coal, and pro

1861.

SANTOS

v.

BRICF.

ceeded therewith to Pernambuco, and did there deliver the same, according to the custom of the port, to the agents of the defendants; and afterwards, in the customary manner, did receive from them a full and complete cargo of sugar in bags, and other lawful merchandize, and did therewith proceed to Liverpool, being ordered by the defendants so to do, and there delivered the said cargo in the usual manner: that all conditions were performed and fulfilled, and all things happened and were done, and all times elapsed, necessary to entitle the plaintiff to the performance of the said agreement by the defendants.-Breach: that the defendants did not pay to the plaintiff for the voyage round freight after the rate and in the manner in the said charterparty mentioned and agreed upon, with 107. gratuity as aforesaid, and there is now due and owing from the defendants to the plaintiff, for and on account of the said freight and gratuity, a large sum of money, to wit, the sum of 1567. 14s. 4d., contrary to the terms, true interest and meaning of the said charter-party.

Plea. That the plaintiff, agreeably to the said charterparty, signed bills of lading for the homeward voyage at certain rates of freight in the said bills of lading specified, and that the plaintiff received divers sums of cash at Cardiff, and for disbursements abroad, pursuant to the terms of the said charter-party; and that they, the defendants, were always ready and willing to accept the captain's draft on them for the difference between the bill of lading freight on the homeward cargo and the amount remaining due to the plaintiff, but the consignee at the loading port did not agree as to the amount in manner required by the said charter-party, nor did the plaintiff draw upon or tender to the defendants, for their acceptance or payment, any draft for the amount, agreeably to the terms of the said charter-party.

Demurrer and joinder therein.

66

Archibald, in support of the demurrer.-The plea is bad. The question turns on the meaning of two clauses in the charter-party, which are inconsistent, and can only be reconciled by construing them as giving to the owner an option. The first provides that the remainder of the freight is to be paid "on the delivery of the cargo, less discount for two months on half freight:" by the other, the owners are to have a lien on the homeward cargo for all freight and demurrage that might accrue thereon, to the extent of the bill of lading freight, but the difference, if any, to be paid at the port of loading by captain's draft, at usance, which they agreed to accept and pay on consignee at loading port agreeing amount." That clause was inserted for the benefit of the plaintiff. The ship might be loaded on her homeward voyage as a general ship, and, since the master was at liberty to sign bills of lading for each cargo at any rate of freight, there might be a difference between the bill of lading freight and the charter freight. If the bill of lading freight was less than the charter freight, it might be advantageous to the shipowner to have the option of payment of the difference at the port of loading by bills, which might be due and paid before the vessel arrived in England. On the other hand, he might choose to await the arrival of the ship in England, when he would be entitled to the charter freight. These considerations explain and reconcile the clauses. It could never have been intended that the agreement of the consignee abroad, who is a stranger to the contract, to the precise amount, should be a condition precedent to the recovery of the freight after it had been earned; otherwise this absurd result would follow, that the shipowner's right of action would depend on whether the consignees chose to settle the amount. The only way to give effect to these clauses is by construing

1861.

SANTOS

v.

BRICE.

1861.

SANTOS

v.

BRICE.

them as giving the shipowner an option; but, if they are repugnant, the earlier must prevail.

The Court then called on

Honyman, contrà.-It is, no doubt, difficult to reconcile these clauses; but the intention was that the difference between the bill of lading freight on the homeward cargo and the amount remaining due to the plaintiff after payment of disbursements abroad, should be ascertained by the consignee at the port of loading, and that the master should draw bills on the defendants for the amount, the object being to prevent any dispute as to the proportional rate for sugar and other produce. Therefore the ascertaining the amount by the consignee, and drawing the bills by the master, are conditions precedent to the defendant's liability to pay the freight. If the two clauses cannot be reconciled, the former must be rejected: Alsager v. The St. Katherine Dock Company (a). [Martin, B.-The whole may be reconciled.-The shipowner is to be paid freight at the rate of 60s. per ton of 20 cwt. nett for sugar-1507. on signing bills of lading at Cardiff-cash for disburs ents abroad-and the remainder on delivery of the cargo. But the defendants are at liberty to load other merchandise; and it is provided that the master shall "sign bills of lading for each cargo at any rate of freight that might be tendered." The master, therefore, was bound to take any goods that were offered to him, and to sign bills of lading for them. It might be, that the bill of lading freight exceeded the charter freight, and then the shipowner would have money coming to him which would be paid on delivery of the cargo; or it might happen, as it did occur, that the bill of lading freight was less than the charter freight,

(a) 14 M. & W. 794.

and then the difference was "to be paid at the port of loading, by the captain's draft on charterers, at usance, on consignee at loading port agreeing amount." These latter words are to be read "upon the occasion or in the event" of the consignee settling the amount. This construction renders the whole consistent.]

Per CURIAM (a).-There must be judgment for the plaintiff.

(a) Pollock, C, B., Martin, B., and Wilde, B.

1861.

SANTOS

v.

BRICE.

SCOTSON and Others v. PEGG.

DECLARATION.-For that in consideration that the

plaintiffs, at the request of the defendant, would deliver to the defendant a certain cargo of coals, then on board a certain ship of plaintiffs the defendant to take the same from and out of the said ship, the defendant promised the plaintiffs to unload and discharge the same at the rate of forty-nine tons of the said coals during each working day, after the said ship was ready to unload and discharge the same. And although the plaintiffs did afterwards deliver the said cargo to the defendant, and were always ready and willing to suffer and permit him to take the same from and out of the said ship as aforesaid, and although all things were done, and conditions precedent to be performed by the plaintiffs were performed by the plaintiffs, to entitle the plaintiffs to a performance of the

Jan. 28.

The perform

ance of an act

which a person has agreed

with another is a good consideration contract with

to perform,

to support a

a third person

if the latter

derives a

benefit from the performance.

Therefore

where a decla

ration stated

that, in con

sideration that

the plaintiff would deliver

to the defend

ant a cargo of

coals on board the plaintiff's

ship, the defendant promised to discharge the same at the rate of forty-nine tons a-day:Held, that a plea was no answer which stated that the plaintiffs had made a previons contract with other persons for the delivery of the coals to their order in the same way, and they ordered the delivery to the defendant.