
    [Philadelphia,
    Saturday, January 4, 1812.]
    Dusar and another against Perit.
    A deviation from orders, excused by an event not contemplated at the time the orders were given.
    Instructions to sell a vessel only at a certain sum free of all charges whatsoever, mean free of all charges on account of the sale of the vessel, and not on account of the previous voyage, such as seamen’s wages, and provisions.
    This was an action upon the case against the defendant to recover damages for his breach of the plaintiffs’ orders. The cause -was referred under the act of 1705, and a report made in favor of the defendant; and it was upon exceptions to this report, that the matter now came before the Court.
    By the documents exhibited upon the hearing, it appeared that the plaintiffs on the 8th of August 1810, wrote a letter *to the defendant as supercargo of their schooner Alligator, of which the following are extracts. “We have the pleasure of handing you invoice and bill of lading of the schooner Alligator’s cargo, John Strahan, master, to your consignation.—The object of the voyage is to touch at the Havanna, to try the market, and to sell there at once, if you can obtain thirteen and a half dollars per barrel, free of all duties, commissions and charges, &c. If that price cannot be obtained, and there is a prospect of doing better at another port in the West Indies, proceed there, and if then frustrated in your object, make the best of your way to Lisbon or Cadiz, being very careful not to suffer vessel and cargo to fall into possession of the French. Should Cadiz or Lisbon be taken, or the markets in that quarter prove to be glutted, after collecting the best information, and perhaps as a last resource, shape your course for Bristol in England. If you dispose of this cargo at the Havanna, make us the returns immediately by the schooner in Muscovado sugar.—The schooner Alligator, which is perfectly new, &c., &c., we authorize you also to sell, if you can get for her fourteen thousand dollars cash, free of all charges whatsoever, and make the remittances as above-mentioned in sugars by other good American vessels, advising us always in due course for insurance.”
    On the voyage to Havanna, the schooner ran upon the Great Bahama, and was forced to throw overboard about a hundred barrels of her flour. In consequence of this accident, she put into the Havanna, without any particular reference to the markets, but for the purpose of being hove down. After her cargo was taken out, the market promised to give the defendant the price for his flour at which he was limited. He sold the schooner to the government, for 14,000 dollars clear of all duties and commissions, but not clear of wages and provisions on the outward voyage; and he commenced the sale of his cargo, which at first brought him the limited price; it however soon fell, from the arrival of other cargoes, to much less than the minimum.
    
    The exceptions to the report were in substance, that the referees erred in fact and in law, because they had not considered the instructions as absolutely binding upon the defendant, and had allowed him to pass, without making *comPensation for the loss upon both schooner and cargo in consequence of his taking less than he was ordered to take.
    The referees stated, that they considered the market at Havanna as being the principal object of the plaintiffs in relation to the cargo, and that it was also intended to sell the schooner there, as the plaintiffs spoke of remittances for her sales in sugar. That nothing but a prospect of better markets in the W est Indies or at Cadiz or Lisbon was to carry the supercargo thither; and they were satisfied the markets elsewhere were no better. But even if it were not so, here was an unexpected accident not provided for— namely, the striking on the Great Bank, which required the schooner to be overhauled, and caused the loss of about an eighth of her cargo, in a considerable degree injuring the adventure. The former required the supercargo to go into Havanna at all events; and being there, the price of flour then being within his limit, he was entitled to sell, and under the existing circumstances, was not to be visited with the loss which afterwards took place. As to the schooner, they were all satisfied that the sale was according to the instruction; because free of all charges whatsoever, meant free of commissions and duties upon the sale, which latter were very high at Havanna, and were saved by the defendant’s sale to the government; and that the letter did not mean free of charges upon the voyage, such as seamen’s wages and provisions. They were perfectly satisfied that the defendant had acted with the greatest integrity, and zeal for the plaintiffs’ interest.
    
      J. II. Ingersoll for the plaintiffs.
    
      Chauncey for the defendant.
   Tilghman O. J.

This action is brought against .the supercargo of the schooner Alligator, to recover damages for breach of the instruction of the owners, 1st, with respect to the sale of the cargo; 2d, of the vessel.

I agree with the plaintiffs’ counsel in the construction of the orders as to the sale of the cargo, that is to say, that it was not intended to give the supercargo any discretion as to selling at the Havanna at a less price than thirteen dollars fifty cents per barrel for the flour clear of all charges, &c. If that could not be had, he was to proceed to some of the *other places mentioned in the instructions. But an event took place, not provided for by the instructions. The vessel ran aground, and was obliged to throw over part of her cargo, and proceed to the nearest port, in order to unload and undergo an examination. To have proceeded to Europe without such an examination, would have been unwarrantable conduct. The order of the owners was, that the vessel should not be entered at the Havanna, unless it was ascertained that the price of thirteen dollars fifty cents could be had. But the necessity of the case justified a departure from this order. Here then the supercargo found himself in a situation not contemplated by the owners when they gave him their instructions. His behavior in this unexpected state of things, both as to integrity and prudence, has been fully considered by the arbitrators, and they have found no fault in him. That being the case, I see no reason for disturbing the award so far as concerns the cargo. Let us see now, how the matter stands with regard to the vessel. The orders were, not to take less than fourteen thousaud dollars free of all charges lohatsoever. The arbitrators understand the order thus, free of every kind of charge, duty, costs, or commissions, on account of the sale of the vessel. It seems there is a considerable duty on the sale of a vessel at the Havanna, which was avoided in this instance, by a sale to the government. But the plaintiffs’ counsel contends that under the word charges are to be included seamen’s wages, provisions, &e. The expression charges, is not very definite. In a subject so purely mercantile, the opinion of merchants as to the meaning of words in common use among themselves is entitled to considerable weight. The arbitrators are men of experience in business, and have given substantial reasons for their opinion. They consider the charges which the plaintiffs wish to include, as belonging to the voyage, rather than the ship ; and it appears to me that they are in the right. The words admit of either one construction or the other, but I think that of the arbitrators is most reasonable. Understanding it in that sense, there has been no violation of orders. The price which was fixed as the minimum has been obtained. I am, therefore, of opinion that the award should be confirmed.

* Ye ates J.

The report of the referees in this case has been questioned on the ground of their supposed mistake in point of law. It has been urged, that the refer-lees have erred in the opinion they formed of the plaintiffs’ 'letter of instructions dated August 8th 1810, addressed by them as owners of the schooner Alligator and her cargo to the defendant their supercargo.

On the face of the instructions it is obvious, that the owners contemplated the Havanna as the port, where in all probability the cargo would be sold, and that they made no provisions for any unfortunate event which might occur in the course of the voyage. And hence it follows, that on the schooner’s running foul of the Great Bank, and receiving damage thereby, the supercargo was bound to exercise his discretion, in order to meet that circumstance. The sale of the vessel therefore to the Spanish government was in my idea justified by the true spirit of the plaintiffs’ order. Mr. Yard’s testimony confirms the opinion I had formed on this part of the case.

When the cargo was unladen, the Havanna market offered a prospect of sales according to the plaintiffs’ limitations. The first sales which were made are not questioned, and when once begun, and the schooner disposed of, I do not see what better could be done, than was done. The Cadiz or Lisbon market offered no inducements to transport the flour to either of those ports. The referees had no difficulty on this head.

I think it a matter of great moment in commercial transactions, that agents should be strictly held to execute the orders of their principals; but I do not deem this such a case as demands the Court’s interposition in order to guard that principle.

I am of opinion that judgment should be rendered on the report.

Brackenridge J. concurred.

Award confirmed.  