
    C. & D. Brenan v. J. N. & S. W. Shelton.
    The defendants received the plaintiffs’ goods onboard their boat or box, to be carried by them for freight; and in a receipt, which they gave for the goods, specifying the terms of the contract, it was stipulated, that insurance should be effected by the consignees: Held, that, supposing it to have been the intention, that the stipulation to insure was to be performed by the plaintiffs, or the consignees as their agents ; and admitting that insurance could have been of any benefit to the defendants; still the stipulation to insure formed no part of the consideration of the defendants’ undertaking to carry, and that in an action for carrying negligently, whereby the goods were damaged, it need not be set out in the declaration, nor performance, or excuse for non-performance, averred.
    It is sufficient in assumpsit, to set out in the declaration, so much of the contract, as contains the entire consideration of the act, and the entire act to be done in virtue of that consideration. Matters collateral merely, or which only go to limit the future responsibility of the defendants, and do not enter into the consideration of their original undertaking, need not be stated.
    Tried before Mr. Justice Richardson, at Charleston, January-Term, 1830.
    ' The declaration, which was in assumpsit, contained two counts: The first set forth, that defendants were common carriers, and plaintiffs put on board their boat or box, one hundred and thirty-one bales of cotton, in good order, to be carried to Charleston, and delivered to Boyce & Henry, which for reasonable reward defendants promised to do: The second, that in consideration plaintiffs had put on board, &c. defendants promised to carry, &c. The breach in both counts, was, that by negligence of defendants, one bale was lost, and fifty-six damaged.
    The plaintiffs gave in evidence a paper signed by defendants, acknowledging receipt of the cotton, and promising to carry, and deliver it to Boyce & Henry, “ they paying freight for the same, $1, 25 cts. per bale, deducting from the same one hundred and fifty dollars, already paid, also premium of insurance to be paid, and insurance made by Boyce & Henry on receipt hereof.” The damage was proved; and there was evidence, that Boyce & Henry had endeavoured to effect insurance, but without success, the insurance offices having recently come to the resolution to take no further risks on the species of river craft called boxes.
    
      His Honor sustained a motion for a nonsuit, on the ground that a special agreement being proved, it ought to have been set out iñ the declaration, and performance of the stipulation for insurance, or an excuse for non-performance, averred. The plaintiffs now moved to set aside the nonsuit, and for a new trial.
    Petigru, for the motion.
    Was the stipulation to insure any part of the consideration of the undertaking to carry 1 Insurance would only have been against the risks of the river; not against the negligence of the carrier. 2 Com. Con. 320. Park, on In. 82. Paley on In. 20. The defendants, then, could not have been benefited by insurance, and therefore it could not have been a consideration for their undertaking.
    If the insurance was intended for their benefit, still it was not a condition precedent: It was not to be effected prior to the departure of the box. The cotton was already on board ; and it came out in the evidence, that the box had left Columbia, and had actually sunk, before orders of insurance did, or could have reached the agents who were to effect it. Where one thing is to be done after another, it cannot be the cause or consideration of that other, and performance of it need not be averred. Com. Dig. Pleader. C. 52. 54.
    But admitting that insurancehad been a condition precedent. It might have excused the defendants for not carrying the cotton at all, but does not excuse their carrying it negligently. The .distinction is between non-feazance and mal-feazance: In an action for the latter, it is unnecessary to state any consideration. Coggs v. Barnard. 2 Ld. Raym. 909. Lawes’ PI. Ass. 57.
    The nonsuit can only be sustained on the ground, that every part of an agreement must be forced into the declaration, however immaterial to the cause of action. This is not the rule. It is in all cases sufficient to state the promise, the breach of which is complained of, the entire consideration of that promise, and lastly the breach. Lawes’ PI. Ass. 79. Matters collateral, and which do not constitute the consideration of that part of the contract, which is declared on, may be omitted. Ib. 80-1-2.
    J. G. Holmes, contra.
    
    The liabilities of the carrier and the underwriters are not always distinct. The carrier is in some cases regarded in law in the character of an insurer. 1 T. R. 33. The insurer is liable as well as the carrier for barratry : Cowp. 143, 8 East, 135. And, in one case, the insurers were held liable for a loss, occasioned by the mere negligence of the master and mariners, without fraud. Walker v. Maitland, 5 Barn. & Aid. 171. This may have been a similar case; and if so, the insurance would have availed the defendants: But at all events, it was a question, which the plaintiffs had no right to decide against them. The object of the stipulation for insurance, was obviously to limit the undertaking of the defendants, and to protect them against the harshness of the rule of law as to common carriers. Insurance, therefore, or at least an endeavour to effect insurance, was a condition precedent to the attaching of the liability of the defendants; and a statement of the condition, accompanied with proper averments, was necessary to fix that liability.
    The plaintiffs assume that insurance could not have benefited the defendants : But that is the very question in debate. It belongs to the Court to decide it; and the defendants had aright to require, that it should have been made by the pleadings. It is admitted that the plaintiffs were bound to allege the entire consideration : 2 East, 2, 3. 2 Bos. &..Pul. 116. Lawes’ PI. Ass. 57.-; but it is urged, that because the insurance was not to be effected until after the defendants’ liability had commenced, therefore it could not have been a consideration for their undertaking that liability. This is to confound the agreement to insure with the insurance itself. The agreement to insure, at least, was a condition precedent to the defendants’ undertaking; it was part of the consideration, and according to the rule, it ought to have been stated. It should have been set out in the declaration, as well to enable the Court to judge how far it was or was not necessary for the plaintiffs to have also averred performance, or excuse for non-performance; as to apprize the defendants themselves of the case they were to meet, and the contract they were sued for.
    It is not contended, that the plaintiffs were bound to set out the contract in hcec verba; but they were bound at their peril to set out the whole effect of it. This they have not done. They have declared generally against the defendants as common carriers; and they have proved a special agreement limited with a condition. The allegations and the proofs do not agree: The plaintiffs have neither set forth the whole agreement proved, nor set forth any part of it truly; and the nonsuit was therefore properly ordered.
   O’Neael J.

In the action of assumpsit it is generally necessary to set out the consideration, the promise, and the breach. The whole consideration should be stated truly; and the promise ought to be set out either in the words, in which it was made, or according to its legal effect, 1 Ch. Pl. 295. 299. The latter is the more technical, and therefore the better course. Ib. 302. In Clarke v. Gray, 6 East, 569, Lord Ellenborough said, “ It is sufficient to state in the declaration so much of any contract, consisting of several distinct parts, and collateral provisions, as contains the entire consideration of the act, and the entire act to be done in virtue of such consideration.”

These are general rules, and well known to every pleader; but they are entirely sufficient for the decision of the case before us. The defendants are declared against as common carriers, in the usual form: And the ground, on which the nonsuit was ordered, and on which it is now attempted to be supported, is, that the receipt of defendants, given in evidence, was not a general undertaking to carry, but a special agreement, by which their liability was not to attach, unless the plaintiffs effected insurance on the box, in which the cotton was laden ; and that an actual performance, or an excuse for non-performance, should have been averredi In what does the receipt differ from a general undertaking to carry for freight 11 can discover nothing, either in the consideration, or in the agreement itself, which differs it from the usual contract of a carrier.

The consideration, for which they undertake to deliver the cotton, is the freight. It is true, that there is a stipulation, that insurance shall be effected; but that forms no part of the consideration of the undertaking to carry. It admits of question, indeed, whether the stipulation was not one which was to be performed by the defendants, or rather by Boyce & Henry, as their agents : For, read the receipt through, in the order in which it is written, and it would appear that the premium of insurance was to be deducted from the freight to be paid to the defendants. Admitting, however, that the stipulation for insurance was to have been performed by the plaintiffs : Insurance could riot have benefited the defendants ; for the liability of the insurers would have arisen from loss, by perils, to which the liability of the carriers did not extemjl. Insurance could not, therefore, have been intended for their benefit, nor formed any part of the consideration of their undertaking.

Let it even be conceded, that the insurance was intended for the benefit of the defendants, and that it could have availed them ; yet their liability had commenced at the date of the receipt, and the insurance had to be effected afterwards. The effectinginsurance, could not, therefore, be a condition precedent to the attaching of that liability ; and hence it was unnecessary for the plaintiffs to have averred performance, or an excuse for non-performance. 1 Ch. Pl. 309-10-13. But it is argued, that the agreement to insure was a condition of the defendants’ undertaking to carry, and forming part of the consideration it ought to have been set out. Here lies the whole error of the defendants. They attach to the supposed stipulation for insurance, an importance in the contract, to w'hich it is not intitled. It is certainly necessary that a sufficient consideration should be stated in the declaration ; and if the plaintiffs’ agreement to perform a subsequent act is the consideration, it must perhaps be stated, although it is unnecessary to aver performance. But where a sufficient consideration is stated, it is altogetherunnecessary to set out matters which are merely collateral, or which only go to limit the future responsibility of the defendants, but which do not constitute the consideration of the undertaking, for the breach of which the action is brought. Clarke v. Gray, 6 East, 563. Thomson v. Miles, 1 Esp. N. P. C. 184.

What was the true consideration of the defendants’ undertaking 1 What was the entire act to be done 1 The freight, or in the language of the declaration, “ reasonable reward,” was the true consideration. The act, to be done for this consideration, was the carriage and delivery of the cotton in good order. These are all fully set out in the declaration. If the stipulation to insure was an. undertaking on the part of the plaintiffs, it was altogether collateral and independent, and went merely to limit the future responsibility of the defendants. It formed no part of the true consideration of their undertaking,' and therefore needed not to have been set forth in the declaration. The motion to set aside the nonsuit is therefore granted.

Johnson J. concurred. Harper J. having been of counsel in the caSse, gave no opinion.

Motion granted.  