Wheelwright v. Beers

<p>In an action of covenant on a charter-party, the declaration set forth, that the defendant had stipulated, that a vessel, of which hé was the owner, should perform a voyage from N. Y. to Omoa and back, for the plaintiff That all the covenants, on the part of the plaintiff were performed; but that said vessel, instead of proceeding to Omoa, put into the port of Norfolk, and the defendant did not despatch her thence, but neglected and refused so to do, contrary to the effect of the charter-party.</p> <p>The defendant pleaded six special pleas in bar. The first and second, set forth in substance, that the vessel, while proceeding on her voyage, was 'so much damaged by the perils of the seas, that she put into Norfolk, as a port of necessity, where the plaintiff took possession of the cargo, and of the same ever afterwards retained possession.</p> <p>The fourth plea, after admitting the charter-party, the sailing of the vessel, and that she put into Norfolk, &c., alleged that said vessel, while prosecuting her voyage, was so much damaged by the perils of the seas, that it became necessary, that she should put into the nearest port, and that Norfolk was, accordingly selected as a port of necessity. That while there, the said vessel was examined, to ascertain what repairs were requisite to enable her to proceed on her voyage, when it was found necessary, for the benefit of all concerned, that she should be sold, that she was sold accordingly, “ and so, and not otherwise, “ the said voyage, was by the mere perils, of the sea, broken up.”</p> <p>The fifth and sixth pleas alleged, that the plaintiff ought not to maintain his action, because the cargo, mentioned in the declaration, belonged to, and was laden on board of said vessel, for one John Living, for whom said charter-party • was made by the defendant, as his agent, as appeared by the oyer thereof.</p> <p>Upon demurrer to these pleas, the plaintiff had judgment upon the first, second, fifth and sixth, and the defendant upon the fourth.</p>