
    Jacob B. Winchester versus Rebecca Patterson, Administratrix, &c.
    
      A. ships an adventure on a voyage to a foreign port, and consigns it to the master, upon an agreement that the consignee should receive for freight a certain percentage of the proceeds of the adventure, and -the use of the remainder on the homeward voyage. The adventure was sold at the foreign port, but tile proceeds were wholly lost on the homeward passage. It was held that, upon the sale of the adventure, the consignee became the absolute debtor of the shipper, and he recovered the amount against the administratrix of the consignee.
    Assumpsit for money had and received. The action came before the Court on an agreed statement of facts. [ * 63 ] * William Patterson, the defendant’s intestate, being bound on a voyage from Salem to Cayenne, the plaintiff shipped an adventure of soap and candles in the same vessel, which he consigned to the said William; and it was agreed that the consignee should retain a certain stipulated percentage as freight, and the use of the money which the adventure should produce, on the return voyage. The intestate arrived safely with the goods, which he sold, and applied the proceeds to the purchase of other articles on his account. These he shipped on board another vessel for Salem, in which he also took passage himself, having sold at Cayenne the vessel in which he sailed from Salem.
    
    While abroad, he caused insurance to be made at Salem on the goods shipped by him on his return voyage, but not to the value of those goods. The vessel on which he so embarked himself and his goods, was wholly lost, with all her lading, and all the persons on board her, on her passage to Salesn. The underwriters paid to the defendant the sum insured as aforesaid.
    
      If, upon the facts agreed, the Court should be of opinion that the plaintiff was entitled to recover, judgment was to be rendered for him upon the default of the defendant, for such sum as the Court should adjudge due to him; otherwise he was to become nonsuit.
    
      Pickering, for the defendant
    [being called on by the Court], referred to the case of Wallis vs. Cook
      
      . Here were, in effect, two contracts. The last on the return voyage was like a contract of respondentia, and, under the facts of the case, the plaintiff is not entitled to recover any thing .
    
      Howes, for the plaintiff,
    agreed that the contract was divisible. The first was the common one of a bill of lading; the second a loan of money by the plaintiff to the intestate for the passage home. This was to be paid in every event, and in a reasonable time. The outward risk of the merchandise was the plaintiff's; with the homeward voyage he had no concern. In the case of Wallis vs. Cook, it was * agreed that payment should [ * 64 ] depend on the arrival of the vessel in the United States.
    
    But in our case there was no contingency contemplated, beyond the outward voyage. This is not a contract of respondentia; and so the foreign authorities, cited for the defendant, have no application.
    
      
       10 Mass. Rep. 510.
    
    
      
      
        Foth. Contrat a la Gros Jlvanturs, 34,35.—2 Enterig. 561. 476.
    
   By the Court.

When the defendant’s intestate had made sale of the plaintiff’s goods, and converted them into money, or into other articles of merchandise suitable for the home market, he became the absolute debtor of the plaintiff, to the amount which the goods produced. He had a right to apply the proceeds to his own use, and it appears that he did so. The plaintiff is entitled to recover the price for which his goods were sold in the foreign port, •f that can now be ascertained. If not, let him take judgment for the invoice value here, with interest from the date of the shipment in lieu of his expected profits .

Defendant defaulted. 
      
       [By the agreement the plaintiff was entitled only to the produce or net amount of the sales, after deducting the freight. Want of evidence could not alter the con tract.—Ed.]
     