majority">By the Court, W. F. Allen, J.

This action was tried by the court, and the case should have shown what facts were found by the judge, and his conclusions of law. {Code, § 268.) The facts proved are not specified. As the evidence is not con- ' fiieting, and the facts not complicated, we may, without sending the case back for resettlement, assume that the judge found such facts as are warranted by the evidence and will support the judgment.

The evidence warrants the conclusions, 1. That the cargo was insured, and upon the happening of the disaster to the vessel spoken of in the evidence, was abandoned by the defendant to the insurers, who assented thereto, and accepted the abandonment. 2. That the plaintiff did not refuse to perform his contract by transporting the wheat to Oswego and delivering it at that port to the shipper or his assigns, but was present,* by his agent, willing and ready and offering to do his duty in the premises. 3. That there was no direct refusal, on the part of the defendant, or the insurers, after the abandonment of the cargo, to suffer the plaintiff to deliver at Oswego; as there was no formal request on the part of the plaintiff, to be permitted to do so. 4. That the contract of affreightment, under which the wheat was shipped, was voluntarily abandoned by the plaintiff and the insurers, after the acceptance of the abandonment, and the latter, with the assent of the former, voluntarily received the wheat at the place of the disaster; each party preferring thus to terminate the contract, rather than proceed to a strict performance of the original contract.

From these facts results the defendant’s liability to pay freight pro rata itineris, as upon an assumpsit implied by the volun*53tary acceptance of the goods at a place short of the port of destination.

A contract of affreightment is like every other contract, and either party can insist upon a strict performance by the other. In this case the defendant, or the insurance company as his assigns, having succeeded to his rights, might have refused to receive the wheat at any place other than Oswego, and upon a failure of the plaintiff to deliver it at that place, would not have been liable for any part of the freight, and could have called upon the ship owner to respond in damages for the non-performance of his contract. So the plaintiff might have insisted upon his right to deliver the cargo at the port of destination, and would have been allowed a reasonable time to repair his own vessel or to procure another for that purpose; and had the shipper refused to do so he would have been entitled to full freight, and would have had a lien upon the cargo, for it. A third course was pursued. The shipper (for I assume, upon this branch of the case, that a receipt of the goods by the insurers was equivalent to the receipt by the shipper in person) voluntarily accepted the goods at the place where the voyage was interrupted, which discharged the carrier from further responsibility, and entitled him to a pro rata compensation for the transportation of the goods to that place. These propositions are fully sustained by the authorities, both English and American, from the cases of Luteridge v. Grey and Luke v. Lyde to the present time. (See Luteridge v. Grey, cited in Abbott on Shipping, 438; Luke v. Lyde, 2 Burr. 882; Abbott on Shipping, 434, 435, 436, 448, 406; 3 Kent’s Com. 219, 228, 9; Caze v. Baltimore Ins. Co., 7 Cranch, 358; Robinson v. Marine Ins. Co., 2 John. 323; Coffin v. Storer, 5 Mass. Rep. 252; Bork v. Norton, 2 McLean, 422; The Ship Nathaniel Hooper, 3 Sum. 542; Parsons v. Hardy, 14 Wend. 215; Welch v. Hicks, 6 Cowen, 504; Williams v. Smith, 2 Caines, 13.) The same rules predominate in the maritime law. (See per Lord Mansfield in Luke v. Lyde, supra, citing from the laws of Oleron.) The cases relied upon by the defendant’s counsel were actions upon policies for freight, in which it was held that the plaintiff was bound to show that *54the loss of freight was occasioned by some peril insured against* by which freight could not be earned, and not by reason of the omission of the master to insist upon his right to earn freight, {Herbert v. Hallett, 3 John. Cases, 92, Griswold v. New York Insurance Company, 3 John. 321. Cazev, Baltimore Ins. Co., supra.)In actions of covenant upon charter parties, the plaintiff claiming to recover upon the original contract and not upon an implied assumpsit growing out of the voluntary acceptance of the goods at a place short of the port of destination, {Cook v. Jennings, 7 T. R. 881.) The abandonment of the cargo by the defendant and the acceptance thereof by the insurers, divested the defendant of all his rights as owner, and placed the insurance company in his place, so' that an acceptance of the goods by the latter was equivalent to an acceptance by the defendant. The cargo had been transported thus far at the request and upon the promise of the defendant to pay the freight, and was delivered to persons authorized by the defendant to receive it. Had the wheat been brought to Oswego, and delivered to a vendee of the defendant at his request, no question would have been made as to his liability. So, had the property been delivered at any other place, to any party, upon the express direction of the defendant, just as little doubt would have existed as to his liability for freight pro rata. By the abandonment and acceptance, the insurers stand in the place of the defendant, and he is bound by their acts. The defendant is not the loser by the acceptance of the wheat at the place of the disaster, charging him with pro rata freight, rather than a delivery at Oswego, charging him with full freight. A sale by the owner of the cargo, at an intermediate port, is an acceptance of the cargo at that port, subjecting him to pro rata freight. An abandonment to the underwriters, and an acceptance by them, is equivalent to a sale. {Hughes on Ins. 328. Walden v. Phoenix Ins. Co., 5 John. 310, per Thompson, J. atp. 324.) In Jjuteridge v. Grey, cited above, it was held by the house of lords in England, that shippers were liable for freight pro rata, in a case like this; the cargo having been abandoned to the underwriters, and they having received the goods at an intermediate port.

*55[Onondaga General Term,October 4, 1852.

W. F. Allen, Selden and Hubbard, Justices.]

The only remaining question is upon the measure of compensation adopted by the judge. He adopted the rule laid down in Luke v. Lyde, taking into consideration, and making a part of the allowance, the amount paid for canal tolls. That is, the judge decided that the plaintiff was first to be paid the amount disbursed for canal tolls, and the balance of the freight in proportion to the part of the voyage performed. This, as before said, was in accordance with Luke v. Lyde, which was followed in Robinson v. Marine Insurance Company, (2 John. 328.) This would seem to be a just rule; as the plaintiff, if entitled to recover any thing, is entitled to recover for services bestowed, and expenses incurred. The contract implied by law is to pay for these, and not for the benefit which the shipper has received from them. It may have been more or less advantageous to him to receive his goods at the intermediate port, rather than at the port of destination; and whether more or less cannot be determined with any certainty. And the whole investigation of comparative benefits and probable expenses of a delivery at the port of destination is quite too uncertain to be entered upon; while the rule adopted is certain, and corresponds with the contract which the law implies, upon the acceptance of the goods. Although the soundness of this rule has been questioned, in Massachusetts, and by the annotator of Abbott on Shipping, it is the settled law in this state. The case in Massachusetts, (Coffin v. Storer, 5 Mass. Rep. 252,) in which, the rule was questioned, was entirely unlike the case of Luke v. Lyde and this case, and was properly decided, upon a different principle. And the strictures upon the measure of compensation in cases like the present, were not necessary to the result in that case.

The judgment in this action is affirmed.

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