¶1delivered the opinion of the court.
¶2The plain tiff sues the owners of the schooner Messenger, to recover back the sum of three hundred and fifty dollars paid by him on a contract of charter-party, together with one thousand dollars, the penalty stipulated in the contract in case of its non performance. The charty-party shows that the owners had let to freight the hold of the schooner for a voyage to be made from New-York, to Aransasua in Texas, then to be discharged, the dangers of the sea excepted. The The charterer was authorised to load and put on board a loading of such goods and merchandise as he should think proper, contraband goods excepted. He engaged to pay seven hundred dollars for the freight or hire of the schooner, one half to be paid before sailing, and the balance on the arrival of the schooner .at the place of her destination. He further engaged to pay one half of the port charges and and pilotage; and was at liberty to put four passengers in the cabin. The parties further bound themselves, mutually to pay a penalty of a thousand dollars, in case of non performance of the stipulations of the contract. It appears that one half of the hire was advanced, and the schooner sailed at the time agreed on loaded with emigrants, accompainied by the charterer, but did not enter her port of destination; on the contrary after making an attempt to enter the captain steered for, and ultimately reached the port ofNew-Qrleans.
¶3The defendants admit the execution of the charter-party, but deny any breach of the contract. They demand in reconvention a judgment for the balance of the hire or freight, alleging that the completion of the voyage, was prevented first, by the misinformation given McGloin, the plaintiff, who represented, that he was capable of piloting the vessel into port, and, secondly, by his menaces and violence, and attempts to stir up mutiny among the pasgers and crew and to run the vessel on shore. They claim also one hundred dollars for four additional cabin *719not passengers beyond the number stipulated for. It is pretended that the loss of the voyage was occasioned by perils of the sea, and the only question is, whether it was broken up by the fault of the charterer himself.
¶4The evidence is somewhat contradictory, but there are some facts about which there is no dispute. First: that after making an unsuccessful attempt to cross the bar of the port of Aransasua, the captain refused to make another attempt, or wait on the coast for more favorable weather, or to send out a boat to sound the channel. Secondly: that no actual attempt at violence was made. Thirdly: that the captain refused to put into some port of Texas, though urged to do so by the charterer, but persisted, notwithstanding his remontrances, to come to New-Orleans. The captain himself admits that after the attempt to enter Aransasua, when in the latitude of Matamoros, the plaintiff proposed to go there. The distance was one hundred or a hundred and fifty miles, and they were then three hundred miles from the Mississippi. If the captain had complied with this request, it would probably have been a virtual compliance with the contract. The charterer at any rate professed his readiness to accept it as such. He cannot, therefore, say that he has been prevented from earning the freight by the fault of the charterer. No menaces are proved to have been made until after the master had declared his determiation to sail for New-Orleans. The passengers had no right to interfere, and the request of a part of them to be conveyed to New-Orleans, amounts to nothing. Their contract was with the charterer and not with the captain and owners. The defendants we think have failed to show that they were prevented, from performing their contract, either by the perils of the sea, or by the fault of the plaintiff.
¶5The claim on the part of the defendants, for one hundred x . dollars,’ for the four additional passengers in the cabin cannot be sustained. We are to presume that their passage was to be from New-York to Aransasua, and not to New-Orleans. Not having been conveyed thither, no passage money is due.
¶6It has been coutended that the plaintiff is not antitied to *720recover back the money already paid, and the defendant’s counsel relies on the authority of Abbott, on shipping, p. 277. But the case there mentioned turned on the principle that the non-performance was owing to the neglect or default of the party claiming to be refunded. We do not think the CaSe applicable to this.
¶7The owners having failed to comply with their contract, have forfeited the stipulated penalty, and are bound to reiund. what has been already paid.
¶8ft is? therefore, ordered, adjudged and decreed, that the judgment of the Parish Court, be affirmed with costs.
¶9OPINION ON THE RE-HEARING OF THIS CAUSE.
¶10delivered the opinion of the court.
¶11The court have maturely considered the question pre-” sen ted on the re-hearing of this case, to wit: whether the plaintiff be entitled to recover both the sum paid in advance as part of the hire of the schooner, and the penalty of one thousand dollars stipulated for damages in case of non performance of the contract.
¶12In the absence of proof as to the law of NeW-York, where the contract was made, we are bound to take our own laws as the rule of decision.
¶13The advance of one half the hire was a part of the contract. It could not therefore he recovered back eo nomine without a recision of the contract. The penal clause was intended to fix the amount of damages to be recovered in case of non-execution of its stipulations, and nothing more nor less could be recovered, except that the court is authorised in cases of partial execution to modify the penalty. La. Code Ar. 2123.
¶14The penal clause of this contract is reciprocal, the parties mutually bind themselves to each other in the penal sum of one thousand dollars. Suppose the plaintiff had violated the contract on his part by refusing to pay the three hundred and fifty dollars in advance, would the owners have been entitled to recover that sum and the penalty besides? Surely not: because that would have been to enforce performance of the contract and to recover the penalty at the same time. We cannot suppose any case in which the defendant would he entitled to recover more than a thousand dollars. If on arrival at the port of destination the plaintifif had refused to pay the remaining part of the hire, and the owners had sued on the penal clause, the plaintiff would have shown a partial performance and entitled himself to a modification of the penalty, according to the article of the Code above cited, and perhaps would have been bound to pay only the balance of the hire with legal interest, as his part of the contract consisted purely in the payment of money. If we permit the plaintiff now to recover thirteen hundred and fifty dollars we destroy the reciprocity of the contract; and in effect permit him to cumulate an action to recover back what was paid on a contract, upon the failure of the consideration which is in effect, a cancelling of the contract, with an action for damages for its non-execution. But it is contended that the redhibitory action is an example of the contrary rule; that when the vendor knew of the vices of the thing, the *722vendee is entitled not only to a rescisión of the sale, hut to damages. That proceeds on the ground of a fraud having been committed, and the exception itself proves the general rule.
¶15Upon the whole we are satisfied that our former judgment was erroneous in this particular.
¶16It is therefore ordered that the judgment heretofore rendered he set aside, and it is further adjudged and decreed that the judgment of the Parish Court he reversed and annulled; that the Plaintiff recover of the defendants one thousand dollars, with interest at five per cent, from judicial demand with costs in the Parish Court, the costs of the appeal to be borne by the plaintiff and appellee.