
    * Nathan Bridge versus David Austin.
    A supercargo engages to transport goods at his own risk against all dangers, excepting the dangers of the seas, and dispose of them to the best profit of the consignor, and render his reasonable account; tlie goods arrive in safety at the place of destination, and are there stolen out of a store where they were deposited for sale. He was held to account to the consignor for the value at the place of shipment, deducting the agreed commission. [The declaration alleged that the defendant promised the plaintiff to transport the goods to Charleston, in the state of South Carolina, at his (defendant’s) own risk, against all dangers, except the dangers of the seas. By the contract, the defendant acknowledged the receipt of the goods on board a ship bound for Charleston, and promised to dispose of them in Charleston for account of plaintiff, and to account to him for the proceeds, and take upon himself all risks except those of the seas. Held there was a fatal variance between the declaration and the evidence. — Ed.]
    This was an action pending in the county of Middlesex. The declaration was “ in a plea of the case for that the said David, at Boston, viz., at Charlestown aforesaid, on the twenty-second day of October, in the year of our Lord 1805, in consideration that the plaintiff had made him, the said David, his bailiff of one case of linens of the value of five hundred dollars, and had agreed to allow and pay him a commission of five per cent, on the proceeds .of the sale thereof, promised the plaintiff to transport the same linen to Charleston, in the state of South Carolina, at his, the said David’s, own risk against all danger, excepting the dangers of the seas, and dispose of the same to the plaintiff’s best profit and advantage, and render to the plaintiff his reasonable account thereof. Yet the said David, though often requested, has never rendered his reasonable account to the plaintiff touching the premises, or in any wise paid him for said linen ; to the damage,” &c.
    Upon non assumpsit pleaded, the cause was tried, at the sittings after the last October term at Cambridge, before the Chief Justice whose report was as follows : —
    “ On the trial, the plaintiff to maintain the issue on his part, gave in evidence a memorandum, in writing, signed by the defendant, in the words following: —‘ Boston, Oct. 22, 1805. Received on board the ship Rodney, J. Hurd, bound for Charleston, S. G., a case of linens, amounting, for the sterling cost, to 841. 5s. Ojd., which 1 promise to dispose of in Charleston for account of Nathan Bridge, and to account and pay to him the proceeds, and take on myself all risks except those of the seas, for which I shall charge five per cent. David Austin.’ And it was agreed by the parties that the said case of linens was transported by the defendant in the said ship to Charleston, where it arrived, and was delivered safe to him by the said Hurd.
    
    
      “ The defendant, to maintain the issue on his part, gave in evidence that, after the case of linen was delivered to him in Charleston, he stored the same in a suitable and convenient store there for sale ; that before the same was sold, it was stolen from the said [*116] store, by some thieves to him unknown, * without any fault on his part; that he has never been able to discover the said thieves, or to recover the said linens, or any part of them; and that the customary commissions charged by commission merchants in Charleston for the sales of merchandise and making returns is five per cent, on the proceeds.
    “On this evidence, the plaintiff insisted that the defendant was not discharged, by the said larceny. The defendant insisted that he was discharged, and if he was not, that he was entitled to another five per cent, besides that mentioned in the memorandum.
    
    
      “ I told the parties that as the merits of the cause depended on the legal construction of the written memorandum, I would reserve that construction for the opinion of the whole Court; and as there were no sales, I should direct the jury to find a verdict for the plaintiff, and to assess his damages equal to the value of the linens at Boston when shipped, deducting therefrom five per cent, commissions. They found a verdict agreeable to the directions; and the defendant, waiving his right to a review, moves for a new trial for the misdirection of the judge.”
   The cause was continued nisi; and now at this term the opinion of the Court was delivered as follows by

Parsons, C. J.

We have considered the memorandum given in evidence, and are all satisfied that the construction of it is agreeable to the direction of the judge, and that the verdict cannot be set aside for his misdirection supposed by the defendant. Indeed, the construction, for which the defendant contends, cannot be admitted; because it is repugnant not only to the express words, but to the manifest intent of the parties.

But in looking into the declaration, it clearly appears to us that the written memorandum was not legal evidence to prove the plain tiff’s count. The allegation is that, for five per cent, commission on the sales, the defendant promised to transport the goods tc Charleston, S. C., at his own risk, against all dangers, except of the seas. The risk of transportation, except of the seas, is the only risk the defendant is there alleged to take on himself, [ * 117] when, from the memorandum, he * is liable to all risks, except of the seas, until he account for the proceeds. The contracts are materially different; and as a judgment in this action would not be a bar to another action, on the contract stated in the memorandum the verdict must be set aside, and a new trial granted, when the plaintiff, if he should think proper, may move to amend on terms.

Ward for the plaintiff.

Bigelow for the defendant.  