
    Robinson against The New York Insurance Company.
    Under an agreement to pay a supercargo, on a voyage out and home, a gross sum out of a return cargo, or give him goods out of it to that amount, at his election, in consideration of which, he and his partner engage to sell the return cargo, free of commissions, if the vessel be obliged, on her return, to break up her homeward voyage, and the cargo be sold at the port of necessity, paying commissions to merchants there, the supercargo loses his compensation, though the proceeds of the homeward cargo be partly invested in other articles, which he brings back, and if a policy has been effected on the commissions, it is a total loss, and the insurer liable, as there is no recourse against the owners of the cargo.
    On a policy of insurance on goods, with this clause underwritten : “ This insurance is declared to be upon the interest of William I. Robinson, being the allowance made him, as supercargo, as per agreement made with the owners of the ship Mary.”
    The facts, as they appeared on the special verdict found in the case, were these: The plaintiff, being part owner of the ship Mary and her cargo, contracted with the other owners to go in her to the East Indies, as supercargo, under the .following written agreement: “We the subscribers, owners of the ship Mary, having engaged William I. Rob* inson, as supercargo, on her intended voyage from hence to Batavia, and possibly to Canton, have agreed, in consideration of his undertaking and executing the duties of this trust, to'pay him ten thousand dollars out of the pro^ ceeds of any cargo the ship may bring from Batavia, or to deliver him part of such cargo, to that amount, at the current market price, on arrival here, at his option. But if the ship should proceed to Canton, and the letter of credit with which he will be furnished should be availing, we in that case agree to pay him twelve thousand five hundred dollars, as above, otherwise he is to have no more than ten thousand dollars, the same as if the voyage out had terminated at Batavia, New York,” &c. Signed by the owners, and the house of William and Silvester Robinson, of which the plaintiff was one. In consequence of this contract, the plaintiff and his partner entered into one with the owners, by which they agreed, “ in consideration of the sum to be paid William I. Robinson, to take upon themselves the trouble of the management and sale of the return cargo, from Batavia, or Canton, free from commission, subject to the direction of a majority of the owners of the ship Mary.”
    The mutual compacts being thus concluded, the plaintiff insured his commissions with the defendants, showing them at the same time, the agreement under which they were to arise, and shortly after departed on the proposed voyage.
    The vessel having safely arrived at Batavia, sold her outward lading, which the plaintiff faithfully invested in a return cargo, *and, without proceeding further, set sail for New-York. On her passage she .experienced such severe weather that she was obliged, after consultation with her crew, to bear away 'for St. Christopher’s, and reached that port in a very disabled state. There it was deemed necessary to have a survey taken upon her, and for that purpose, the captain and supercargo applied for, and obtained, a warrant from the admiralty, upon the execution of which she was ordered to be unladen. Her situation was then found to be so bad, that a second warrant was, in a similar manner, asked for, and granted. Upon this, the surveyors thereby appointed made a due return, on oath, “ that having accurately and carefully examined the said ship, and considered of the repairs necessary, they were unanimously of opinion that she could not be repaired for the full value of her when repaired, and that, without particularizing her several damages, it would be dangerous and unsafe to reload her cargo, and proceed with her on her voyage, and that to repair her would be highly detrimental to the interest of the owners, or underwriters. Thus circumstanced, the captain and plaintiff made a joint application for leave to sell, which being accorded, the vessel and cargo were sold in St. Christopher’s under the direction of the plaintiff, by merchants there, who were paid theii commissions. The plaintiff, however, bought in the vessel on account of the owners, and invested part of the proceeds of her cargo (as the laws of the island would not allow of exporting it in any other bottom) in rum and molasses, with which, being a light and buoyant cargo, she arrived, after some trivial repairs, at New-York, in the spring of the year, though inadequate to the voyage at any other season, or with her original lading, unless at an expense of more than her value.
    The owners refusing to pay the plaintiff his commisions, the present action was brought. The abandonment was admitted.
    
      T. L. Ogden, for the plaintiff.
    The interest the plaintiff acquired in the cargo depended on its safe arrival. The object of the insurance was, to guard against any peril which might prevent the arrival of the subject matter out of which the plaintiff’s interest arose. It is like an insurance on bottomry. If the vessel never reach her port, the underwriter will be liable; if she do, he will be exonerated The same principle governs in the present case. As, therefore, the cargo has not arrived, the plaintiff’s claim to his commissions *has been defeated by an accident insured against, and the policy is forfeited. To know whether the plaintiff is entitled to recover, we must answer this question; has the cargo arrived? For its arrival is the test. The policy is on the cargo, depending on the arrival of the goods. The written memorandum does not affect this position. It is within the principle of Kemp v. Vigne, 1 D. & E. 304, and the plaintiff entitled to recover without reference to the contract. By the terms of it there can be no recourse against the owners, for it is to be taken in connexion with the agreement of the plaintiff and his partner to sell the return cargo. His right against them depended on precedent conditions; on his “ undertaking and executing the duties of his trust.” They were, under the contract, to sell and’ invest the outward cargo, and from those duties, when performed, resulted a third, the selling of the return cargo. Till these were all discharged, the plaintiff could have no recourse against the owners. Their agreement was entire for a gross specific sum, on fulfilling certain duties. They have already paid commissions in St. Christopher’s, and all not to be charged again with a further commission, which they agreed to pay only in consideration of having the return cargo sold free 'of commission. Are they to pay the consideration for a service, and not have the service done for which the consideration is paid ? The advantage to be derived from having the return cargo sold, without a charge for disposing of it, was considered in the amount of what they agreed to allow the plaintiff. The arrival of the cargo from Ba-tavia was contemplated by the owners as a condition precedent to their liability. They looked to profits of the adventure to enable them to pay so large a sum. Of this the plaintiff’s right to be paid in goods is a proof. The loss of these very goods is an interest covered by the policy. As they are lost, the insurer is liable for their amount.
    
      Hoffman and Harison, contra.
    The case referred to was on a wager policy, and as this is confessedly one upon interest, the authority cited cannot apply; for, was it a wager policy, a technical total loss would give no right against the underwriter. The analogy as to bottomry does not exist, unless the plaintiff can make out that he is entitled to commissions only on the safe arrival of the cargo. The present claim depends on this question : has the plaintiff a right to commission from his employers ? To answer this we must see what are the duties of a supercargo. To sell, invest, and relade. *Beawes, 48. When these things were performed, the plaintiff’s right accrued; he, therefore, was entitled to his commissions at Batavia, where the last duty was discharged. The payment in New-York, and out of the proceeds, were mere circumstances not of the substance of the agreement, but constituting its modal part. 1 Pow. on Oont. 267. It is urged, however, that the intention of the parties was to make the right to the commissions contingent on the event of safé arrival, because the profits of the adventure were looked to as the fund out of which they were to be paid. Suppose there had been no profits ; suppose a loss ; or a destruction by fire after arrival; or a bankruptcy of a vendee to whom it was sold; would these have taken away the plaintiff’s right? But the cargo has in fact arrived, for the proceeds have come to hand¿ The destruction of the subject matter has only been a technical one, as between insurer and insured ; but as between the plaintiff and his employers it has never ceased to exist. The owners have had the benefit of the plaintiff’s services, and there arises a natural equity out of the case, directing a payment by them for the duties he has performed.
    
      Radcliff, in reply.
    The arguments against considering the arrival and other circumstances mentioned in the contract as conditions precedent, are founded on principles said to apply to the general rights of a supercargo. The contract was entered into to supersede those rights and create others. The plaintiff, to obtain a large compensation, consented to its being contingent; and to protect himself against that contingency he insured. The authority from Powell speaks of time and place being modal, where there is an antecedent debt, upon which the right of payment is founded; not of a right of payment to arise out of a debt to accrue from time and place, according to an original contract. As to the cases supposed, they are not before the court.
    
      
      
         Where an antecedent debt exists, place of payment is only circumstance. Pinchard v. Fowke, Styles, 416. So where a debt is created by the contract itself, in which the place is appointed, The Dutch West-India Bompany v. Jacob Senior Henriques Van Hoses, 1 Stra. 612. Miter, when the debt arises from services at the place. So note the difference.
    
   Tompkins, J.

delivered the opinion of the court. It .was conceded on the argument of this cause, that the plaintiff had an insurable interest; and that if, by the agreement between him and the owners of the ship Mary, he could not resort to them for the payment of the sum therein stipulated for his compensation, the defendants were liable. Upon the construction, therefore, of that agreement the event of this cause depends.

By the terms of the engagement, as well as by the contemporary *acts of the parties evincive of their intention, we consider the shipowners discharged from any liability to pay the plaintiff the sum agreed upon for his compensation. Instead of commissions, as they are usually understood, a gross sum is agreed to be paid, for the performance of the duties specified in the contract, and no provision is made for a pro rata compensation. The undertaking of W. and S. Robinson to sell the return cargo at New-York, without any allowance therefor, is a part of the consideration for the payment oí the entire sum stipulated to he paid to the plaintiff

The fund out of which the plaintiff was to be paid is also prescribed by the agreement, viz : the proceeds of any cargo the ship might bring from Batavia.” The arrival of the return cargo, therefore, at New-York, so that the plaintiff might receive his earnings out of its proceeds, or exercise the election given Mm by the agreement, to receive an equivalent in goods of the return cargo at the current market price, was an event upon which the owners, according to our construction of the agreement, were to become responsible for the ten thousand dollars.

That this must have been the understanding of the parties in this suit appears by the terms of the policy. If it had been intended to insure commissions only, which the plaintiff would have earned upon completing the purchase of the return cargo, there could have been no necessity for insuring home, which is done, and the premium thereby enhanced.

The return cargo did not arrive at New York; and oí course, the fund out of which the- plaintiff was to be paid failed; and the performance of the duties undertaken bj W. and S. Robinson (which we consider a material part oi the consideration for the entire compensation to be paid to the plaintiff) has been defeated by a total loss of vessel and cargo. We are therefore of opinion the plaintiff cannot have recourse to the shipowners, and is entitled to recover in this suit.

Judgment for the plaintiff.  