
    Mactier vs. Wirgman, et al.
    
    In assumpsit to ]honeyrretainedby the defendants, on SS’thepromfiifs “aigo^which was the property of thatP0ie'contract tiesTas from the charter íáing, «na ¡¡'subí Ste, wa, tiKutte goods* shipped by MtPbemianded on but‘atoóme 111 minent'Vf1 Rtf T°pc,mb”fore any earned; biTin the oVe*ihefthortkhon the continent i™ imf otherwise’,“he defendants should height;'*on tie goods with a stipulated by the term ‘jAuí,* ciusion^by the mu-nicipai regulations That the ship o wn * makedany ‘other c£™dtwUhy the pSur^rarying c£ar'c?Upaify,tin of5i'erar0oi4ihat whethe'r'uNouid heeTexJiedientto attempttiiee‘o on the continent! ftrM¡ejuíy"Thkt the only question whethertiiewhoie tie 'continent °"i Europe, were, by ttan’s!°iPc1ilosred “ Jlon^of'theagoods ot the pianitiftf If they were, the “vessel earned freight by going to England', if on the contrary any of them were open to such goods, the defendant had no right, under the stipulations in the agreement, to charge freight on landing them in England} and the plaintiff was entitled to recover any sum of money retained by the defendants on that account, notwithstanding the distracted s$ue of Europe imsht^ave.Eejidered it- hazardous -to seek such open ports* * ’ * * *
    •' Arpe-al from Baltimore County Court. Assumpsit for money had and received, lent and advanced, laid out and expended, and on an insimul computassent. Pleas, the general issue. At the trial the plaintiff,- (now appellant,) ()®ered in evidence a charter party of affreightment under' seal, dated the 25th of April 1810, executed between the plaintiff, together with several other shippers, and the defendants, (the appellees,) owners of the ship or vessel call— ed the William Wilson, whereof P. Wirgman, one of the defendants, was master, of the burthen of, &c. lying in the Baltimore. Covenant by the owners, that the ship should be tight, &c. and that the master would receive and take, and the freighters should load, and put on board the said ship, a cargo of lawful and permitted goods, &c. and being so laden, the master should proceed with the ship from the port of Baltimore, north about, for the port of Sylt. “And on arrlval there it can be ascertained that the ports tíf ^arK^wS and Bremen are open to the admission of Arne-ritan vessels, that the said master shall forthwith proceed to whichsoever the said ports the supercargo and himself shall mos^ f°r die interest, of the freighters. But should the said -ports of Hamburg and Bremen continue closed, ^en 'the said cargo shall be landed at Sylt, if permitted; and in case of refusal to permit the same to be-landed at Sylt, that then the said mastev shall proceed therewith permitted port in the North Sea, or the Baltic, as he, and the supercargo, shall order and direct, And should the Baltic be also closed against the admission °f American vessels, in such case the said master shall proceed with the said cargo to such other portas he and the said supercargo may in their judgment think most proper, And that on the arrival of the said ship at the port of deli-vet7’ die sal(! masier shall and will make a right and true discharge of the said cargo to the said supercargo, or to suc*1 0d*er agent, factor or consignee, of the freighters, as mal direct,agreeably to bills of lading to be signed for the same, and so end and finish the said intended voyage; '^arloers the seas, restraint of rulers, and. princes, ®re’ .Plra^es and-enemies, only, excepted.” The freighters covenanted to pay freight agreeably to the bill of lading; “provided the said cargo be discharged at a port in the North Sea; but if delivered at any port in the Baltic, not higher than Kiel or Colberg, then the said freighters covenant’ &c- to Pay unto the owners an advance of 10 p. c.oft the amount of.the freight money stipulated by the said bills lading. If higher that Kid or Colberg, and not higher than Konigsburgja like advance of 15 p. c. and if higher than Konigsburg alike advance of 20p. c. • And should ° , 1 ' .... the Baltic be shut, such further advance on said freight as shall be settled by arbitration, together with 5 p, c. pri-mage, on whichsoever sums shall be earned as aforesaid; which said sums shall be deemed anil taken in full of freight, primage, &c. and that the said freight, money and primage, shall be paid immediately on the delivery of the said cargo,” &c. The plainliif' also offered in evidence a bill of lading for that part of the cargo shipped by the plaintiff on board the ship ffilliam Wilson, (the ship named in the charter party, dated the 8th of May 1810,) P. Wirgman, one of the defendants, master, bound from the port of Baltimore for Sylt, and a peí mitted port in the North Sea or Baltic, mentioning the goods laden, and that the goods were shipped “for account and risk of the shipper, a citizen of the U. S. of America, and resident merchant of Baltirnoie, to be delivered in the like good order and well conditioned, at the aforesaid permitted port, (the dangers of the seas only excepted,) unto Messrs. David Pariah & Co. Hamburg, or to their assigns, he or they paying freight for the said goods at. the rate of four pounds sterling per ton for logwood, and Nicaragua wood, nine shillings steilingpr. hundred weight for sugar, and eight shillings sterling per hundred pounds for .coffee, with five per cent primage, with primage and average accustomed.” He also offeiedin evidence the following agreement,dated the 14th of May 1810, made and entered into by the defendants at the plaintiff’s request, and by them addressed and delivered to the plaintiff, “we hereby agree and acknowledge that the sundry goods shipped by you on board the ship William Wilson, Pder Wirgman, master, are to be landed in a permitted port on the continent of Europe, (meaning that they are not. to be landed on the island of Sylt,) before the freight is earned. But should the whole of the continent be shut, the freight, with an addition, (as arbitrators may determine,) will be earned should the property be landed in England agreeable to the custom of the country.” He also offered in evidence copies of the three following letters of instruction from him, the plaintiff, to Messrs. Par~ ish & Co. of Hamburg, dated at Baltimore on the 8th, 9th. and 14th oí May 1810. 1. ‘‘Through the recommendation of our mutual good friends Messrs. Robert Gilraor Sons, I have taken the liberty of enclosing you invoice and bill of lading for sugar, coffee and dye woods, of the first quality, shipped on board the ship William Wilson, Peter Wirgman, master, to your address, bound for Sylt, and a permitted port in the North Seam Baltic, the call at Sylt is merely with a view to get information if your port is open to admit her cargo; if so, it is my wish to dispose of my. property immediately on its arrival, to the best possible advantage, provided you do not see a prospect oí better markets, in which case you will be guided by your own judgment. However, 1 would prefer a sale if a small profit could be obtained. If a sale is effected at your port, I wish you to remit, as soon as possible after the arrival of the goods, to my friends Messrs. John Heathcote fy fío, London, as large an advance as you can conveniently make, and when sales are closed, the nett proceeds, advising the same. It is to be observed the ship is nor discharged from her freight until the cargo is landed in a port on the continent of Europe. Should your port nm admit the entry of her cargo, in that rase you will address my property to your friends in a port where it will be admitted, and you judge it will turn out most to my advantage. On account of the unsettled state of affairs, and captain Pf irg-mwn being a particular friend of mine, should the property be denied an entry at your port, and the ship proceed to where you have no friends to confide in, in that case you will consult with captain Wirgman for the safety of my property, giving him such instructions as you may judge most for my interest, when you will order remittances, as before directed, if exchange is in favour, if not, let the nett proceeds be shipped me by the first opportunity in canvass, Russia duck, and brown sheeting, a proportiona-ble quantity of each. The reason why I have been so particular in the bills of lading respecting the logwood, is that I was informed that part had been sawed and split, in order to make stowage, though the former owner of the ship denies it. However, if this is not the case,- the number of pieces and weight vviil be found correct, as per bill of lading. Hoping this venture may arrive to a good market, and that you will exert yourself for my interest, I remain,5’ &c. 2. “In case a remittance in bills should not prove fa-vourable, l have thought proper to inclose a list of articles that would answer, provided they were of good qualities, purchased at the stipulated prices, and shipped immediately direct to this port at moderate freight, but still would prefer the bills. List of burlaps or halblacken in bales of J00 ells, 5 bales,” &c. “or a proportionable quantity of the foregoing articles to the amount of the funds in band, in case of shipment.” 3. “Since writing to you the shippers generally onboard the William PPilson have deemed it expedient to enter into a stipulation or charter party with the owners, in case your port should not be open to receive her cargo. As this instrument of writing seems to be called for in your ports, I have thought proper to sign the same, though it is in no case to invalidate the bill of lading, further than to allow the additional freights stipulated, in case she should proceed further than the two first ports, as you will observe by the enclosed letter from the owners. Be particular in forwarding certificates of landing.” The originals of these letters were put into the possession of Peter Wirgman, previous to his leaving the port of Baltimore on the voyage aforesaid, and were afterwards opened by the crew of a privateer that captured the ship William Wilson, and were restored to Peter Wirgman on the acquittal of the ship by the prize court of Christiansand. The plaintiff further offered in evidence the following letter of instructions, written by the plaintiff, also dated the 8th of May 1810, and addressed and delivered to Peter Wirgrnnn, one of the tfe-fend ants, and who was, as before stated, master of the ship. •‘On account of the unsettled s-'aie of affairs on the continent of Emope, I have thought proper to request my friends Messrs. Pariah & Co. of Hamburg, in the event of the cargo of the U'illimn Wilson being denied entry at their pore, to consult with you on the further destination of the ship, and the disposal of my interest on board. In case they have no friend at the port site may proceed for, you will please to take charge of it, and advise with them what is best to be done for my interest. On your arrival off Sylt, should the situation of affairs be such as to prevent you from communicating with Messrs. Pariah & Co. in that cese yon will have to proceed with the cargo where you judge it will be most advantageous for all concerned, when Í shall consider my part as entirely under your charge, referring you for government to my letter of instructions to Messrs. Pariah & Co. which in that case you will open. You will, no doubt, Lavo occasion to get assistance in sales; be particular in applying to a house of the first respectability, taking care to get the business closed if possible before your departure. Any attention paid to the delivery of my interest will be thankfully acknowledged, and shall satisfy you for any trouble or «¿pense you may be at Sor the safety and security of the same. The reason why i have, been so particular in the bills of lading respecting the logwood, is that Í was informed part had been sowed end split in order to utrke stowage, which was eon miry to agreement, though the former owner, Mr. Levering, dentes it However, if this .should not be the case, the number of pieces and weight will be found correct as nr bill of lading. Satisfied that your best exertions will be used to promote my interest, and wish you a sifr and pim.perous voyage.5’ The plaintiff further offered in evidence the five following letters ii otn /’. Vrifgman to Messrs. Parish & Co. respectively dated the 13th of July, 14th of September, the 14t!i of October, and the 8th and lOdt of November 1810, 1. Dared at Hit-teroe, the 13th of July 1810. “It is with real concern I apprise you of the capture of the ship Ifm. Wilson on the 29th June, (by a Danish privateer,) on board of which, as you doubtless are informed, 1 have the care oí property shipped by Alexander Mlactisr, Esqr. therefore I take the liberty of soliciting, as early as possible, your advice, and any information you conceive will conduce to his interest, which will very much oblige,” &c. 2. Dated at Flekkejiord, the 14th of September 1810. “1 had this pleasure, 13th July, apprising you of the unfortunate detention of ship I'Fm. Wilson and cargo, considerable part of which is to your address, as no doubt you are advised by duplicate, I liten craved your advice respecting our future destination, but a more extensive knowledge of prise cases induces me to believe was I in possession of it, it would be of no advantage, as to be ¿huerican», however accurate their papers, and uncontaminated their neutrality, is sufficient cause, under frivolous pretences to force us through the court of appeals, and by that means ruin our speculations. In 3 or 4 weeks we expect the promulgation of our sentence at Christiansond, and should I find it necessary 1 shall return home and collect uncontrovertible proofs of the tacts we have already stated.” 3. Dated at Chrisli-ansand, the 14th of October 1810. “I yesterday had the pleasure of receiving your much esteemed favour of I he 2d inst. and regret my absence from the ship prevents my detailing the particular quantity of the articles to your address, which consists chiefly of sugar, coffee and logwood, amount to about §30,000, shipped by Mr. .Alexander Maelier of Baltimore, who, as well as our house, have letters to you from our mutual friends Robert Gilmor & Sons. I can only account for your not receiving invoices and bills of lading, by the bearers of the duplicates being equally unfortunate with ourselves, and their letters consequently detained in the prize courts, as. several hundred we brought are in that situation, many of which contain large remittances. ■ I am now in daily expectation of our sentence, of which you may depend upon being immediately advised.” 4. Dated at Chrisliansand, the 8th of November 1810. “I had this pleasure 14th ultimo, in conformity to which I have the satisfaction of announcing on the 5th inst. my ship’s papers were returned in pursuance to the sentence of the prize court, from which no appeal was entered. The situation of the property still causes me much anxiety, and the numerous dangers that envelope us have induced the determination of discharging the cargo in Flekkefiord, where the ship at present lays, for which purpose we have petitioned the Prince Regent, and from our arrival being prior to these recent regulations, anticipate a favourable result.” 5. Dated at Chrisliansand, on the 10th of November 1810. “I bad this pleasure the 8th inst. since which I am favoured with your esteemed communication of 30th ultimo, and cannot but express my gratitude for your provisions for our case, through your friends Messrs. Dunlzfelt & Co. which I feel a persuasion would haye been of essential service, but am happy I shall have no occasion to avail myself of it, as the captors very prudently decline to enter an appeal. I regret your letter does not contain any favourable information upon which we might be induced to alter our determination of unloading in Flekkefiord, which I intend commencing on Wednesday next.” The plaintiff also offered in evidence two letters from Messrs. Parish & Co. to P. Wirgman, dated at Flek-kefiord, Hamburg, on 2d and 30th of October 1801; that of the 2d of October, acknowledged the receipt of his letter of the 14th ultimo, referring to another of the 13th of July, which they had not received; and stating that they had never received any information respecting the consignment by the William Wilson, except fiom their mutual friends Messrs. Widow, John Langs, & Son, Bremen, who mere-¡y mentioned that part of the cargo was to their (the Parish's) consignment. That they should have been very-happy to render their services useful to him during his unfortunate detention in Norway, through the medium of their agents, in advising with him respecting his future proceedings after sentence had been pronounced at Chris-tinnsand, and as very few escaped condemnation at the prize courts in Norway, they must suppose his case would not prove, an exception, and the appeal carried to the high court of admiralty in Copenhagen, where his presence would be necessary. They requested him to inform them who were the shippers of the consignment to their address, and to forward any letters he might have for them, with any other information that might be useful. That if he proceeded to Copenhagen, their friends Messrs. Ihmtzfelt & Co. would cheerfully render him every service in their power for that purpose. That all the Danish ports being shut against tha admission of vessels loaded with colonial produce, it became no easy matter to point out a proper destination for the William Wilson, after she should be liberated; but on this subject they had time enough to correspond after they should be informed by him of the goods he had on hand. That several of their friends, however, proceeded from Goltenhurg to Carhham, there to unload their cargoes, from whence, during the winter, goods might be transported by degrees to the opposite coast, by making arrangements for their admission at lite different Prussian ports. That their partner, ,7. Parish, jr. was then in Sweden, and would be happy to afford him his assistance and advice, &c. The letter of the 30th of October 1810, acknowledged the receipt of his letter of the 14th inst. in answer to theirs of the 2d, and that they observed the goods he had to their consignment consisted of sugar, coffee and logwood, amounting- to §30,000, shipped by Mr. Jl. Mac-tier, who, as well as his house, had letters to them from their mutual friends Messrs. 11. Cilmor & -Sons; that these letters, they observed, were detained in the prize court. That until then they weie without any direct intelligence of this shipment. They were anxiously waiting to hear the result of his sentence, but apprehended it would not prove favourable; in this event he would be under the necessity of proceeding towards Copenhagen, to attend to the appeal in the high court of admiralty at Copenhagen, where their friends. Messrs. Duntzfdi & Co. would use every exertion in his favour. That he would be informed by die public papers of the late French arid Danish decrees respecting colonial produce — of the heavy duties laid on both there and in Holstein. That under existing circumstances it would become a difficult matter to point out a proper port of discharge, so many changes tak-irg place, and that if any further alterations should take place, they should keep him informed. The plaintiff further offered in evidence, that the ship JHlliam IFilson sailed on the voyage mentioned in the charter party, with the goods and merchandize mentioned in the bii! of lading! and that while on her voyage, and before her arrival at the island of Sylt, she was captured on the 2&th of June in the said year, by a Danish privateer, and carried to the port of Hitleroe, in Norway, and subjected to admiralty proceedings as prize by the captors. That the admiralty court finally decreed the restoration of the ship and cargo on the listh of November following, and caused her on that day to be delivered up to P. Wirgman He further offered in evidence certain depositions, taken under commissions issued in this cause at his instance, to Salem in Massachusetts, and to Philadelphia in Pennsylvania, for the purpose of proving in what manner certain supercargoes and others conducted themselves,- who sailed in vessels on voyages to the north of Europe, • during the years 1809, 1810 and 1811, and the state of the different ports, &c. during these years. He further offered in .'evidence, that the ports of Denmark, Sweden, Prussia ahd Russia, in the Baltic, were at that time open to Jlmétícan vessels, and the ship William Wilson■ could with* safety have proceeded to any of the ports' of Denmark, Sweden, Prussia and Russia, and delivered'and sold her cargo to advantage; and that other Emendan vessels did, about that time, proceed up the Baltic., and deliVer and sell their cargoes; but that P. Wirg-man, instead of proceeding thither, sailed from Norway directly to the port of Hull in England, and there delivered the cargo of the said ship to Messrs. Bor thus & Bos-ter, resident merchants of London, whom he selected and chose for that purpose. That E. Thomman, the supercargo, who was placed on board the said ship by the other shippers, jut who had no control over the goods and merchandize of the plaintiff, was left in Norway when the ship sailed as aforesaid. He further offered in evidence, that the defendants received from Messrs. Borthus & Busier, to whom the cargo was delivered as aforesaid, from the proceeds of that part thereof which belonged to the plaintiff’, the sum of §2196 61, the freight stipulated in the bill of lading, for the transportation of the plaintiff’s goods and merchandize; and also the further sum of §2450 36, as additional freight, for landing the same at Hull in England; and also the sum of §18o 88 for demurrage. He further gave in evidénce, that P. Wirgman, after leaving the port of Flckkefiord, in Norway, did not proceed to the island of Sylt, where he might have gone, the same being an open and tree port, and that the cargo would have been permitted to be there landed. He also offered in evidence, that in the understanding of the merchants of Baltimore, when the contrast of charier was executed, a permitted port in the North Sea was understood to apply to a port on the continent of Europe only. The defendants then gave iu evidence, that P. Wirgman and E. Thomman applied to the Danish government for liberty to unlade and dispose of the cargo of the William Wilson, after restoration, at the port of Flekkefiord, in Norway, where she lay, which application was depending until about the 1st of December 181(), when it was refused, and P. Wirgman was ordered by the Danish government to leave Denmark. The only evidence offered of that, fact was the evidence of II. Campbell one of the crew of the ship, that the pilot who navigated the ship from Flekkefwrd, slated, on coming on board of the vessel, in ihe presence and hearing of the crew, and in answer to a question by one of them, that he was directed to take the vessel to sea without delay, but did not stale by whom or by what authority such direction was given. The defendants further offered evidence to prove, that the cargo of tfie plaintiff'was colonial produce, and that an American vessel, laden with colonial produce, could not proceed to any part of the Baltic, nor to any port < f the continental powers in the North Sea, without imminent risk of having the ship and cargo seized and confiscated under the orders and decrees of the several continental pmvra, for the purpose of enforcing, what was celled, the continental system of the Emperor of France. That it was extremely hazardous, if not impracticable, at that season of the year, to prosecute a voyage from Flehke» fiord up the Baltic, from the severity of the season and climate, and that no prudent navigator would voluntarily have, attempted it; and that French and Danish privateers were very numerous in that sea, and captured ail Jlmerican vessels that they fell in with; and that condemnation followed all In each captures. They further gave in evidence, that P. iiirgmnn, under these circumstances, believed that the only prudent and safe course for him to pursue, was to proceed to Hull in England, a port in the North Sea, where he accordingly did proceed, and safely delivered the cargo as stared in the. plaintiff's evidence. They further offered in evidence, that E. Thomman concurred and assented to the whip’s proceeding to Hull under the circumstances aforesaid; and that although P- Wirgmun applied for advice and instructions, (as appears by ids letters to Parish & Co. set out in the plaintiff’s evidence,) to Parish & Co. he obtained from them no other advice or directions than what is contained in the letters from Parish & Co. to P. Wirgnutn, also given in evidence by the plaintiff. They further offered in evidence, that the Island Sylt. is a pari of Holstein, within the dominions of Denmark, and that the orders and decrees of the Danish government, in execution of the continental system, applied as well to Sylt as any other part of the Danish dominions, and that an American vessel with colonial produce on board, was as liable to seizure at Sylt as in any other port in Don,nark. They further offered ia evidence that the port of Hull is a port in the North Sea; and that there is bo custom of merchants, or usage of trade among the merchants of Baltimore, which confines the expression of “a port in the North Sea,” to a port on the continent of Europe. The defendants then moved the court to direct the jury, that P. IFirgman, by the charter party, the me-morandiim, and the letters of instructions from the plaintiff to him, was the agent of die plaintiff, with discretionary powers; and if the jury should be of opinion from the evidence that P. Wirgman, in the exercise of an honest discretion, believed, either from the inclemency of the season and climate, or from the political state of the continent of Europe, or from dangers of capture by privateers, it was unsafe or inexpedient to attempt to land the cargo in any of the ports of the continent, or the North Sea or the Baltic, that then he was justified in proceeding to England, and was entitled to the additional freight stipulated in the agreement of the 14th of May 1810. That at all events, whatever the jury might believe in these respects, that Hull was a port for delivery of the cargo both in the charter party and the said agreement, and therefore that the plaintiff was not entitled to recover. That if P. Wirgman, in his character of supercargo, or agent for the plaintiff, relative to the management of the plaintiff’s cargo, caused the goods to be delivered at Hull, then the defendants were entitled to freight, and the plaintiff could not recover. Upon this prayer the Court, \JPard, A. J.] gave the following direction to the jury. The facts in this case are so material for the solution of the contract of the parties, which like all other contracts must be determined according to its legal intent, that it is rather to be regretted that any question should be withdrawn from the jury, which it appears to the court, is the competent tribunal to adjudge all the law arising from, the proof in the cause. As a prayer has been made it, must be given, refused or modified. The court have carefully examined and compared the agreement, instructions and correspondence. A charter party, bearing date the 25th of April 1810, has been given in evidence, and whatever ambiguity it contains is removed by a subsequent' agreement dated on the 10th of May following. By the latter it is stipulated that the goods are to be landed in a permitted port, in a particular sea, on the continent of Europe, before the freight is earned; meaning that they are not to be landed on the island of Sylt‘, and shoul the continent be'shut, the freight, with an addition, shall be earned, should the property be delivered in England. From this subsequent agreement it is evident that Hull was not a port within the contemplation of the charter party. How far the testimony may go to show that the ports of the continent were shut, is a matter of fact not within the province of the court, but for the jury to determine. If the jury should be of opinion that the ports were closed, then P. Wirgman was justified, as (he agent of the plaintiff, in delivering the cargo iu England. The letter from the plaintiff to Parish & Go', directed them to consult with him as his agent. Wirgman asked their advice, but received none, and thereby, in the opinion of the court, Wirgman was placed in the same situation as if he had been cut off from all communication with them; in which event he was expressly authorised to act according to discretion. The court cannot lay their hand on any letter of the plaintiff’s which goes to lie Wirgman down to the instructions of Parish & Co. or to preclude him absolutely from acting without them, on the contrary it is manifest that the plaintiff considered P. Wirgman an agent, in whom he had vested discretionary powers. It follows, therefore, if the jury should believe that the ports of the continent were closed within the meaning of the articles of agreement, the owners of the vessel were entitled tofreight; or if the jury should believe from the state of the ports, intended to be included by the agreement, that it was inexpedient to attempt the landing of the cargo on the continent, P. Wirgman was authorised to proceed to England, and land his cargo. The vessel consequently earned freight. To this direction the plaintiff excepted; and the verdict and judgment being against him he appealed to this court.
    The cause was argued before Buchanan, Eaexh, Johnson, and Martin, 3. by
    
      Harpp.r and Scoff., for the Appellant; and by
    
      Pinkney and Winder, for the Appellees.
   Buohanan, J.

delivered the opinion of the court. It has been urged in argument on the part of the defendants, that the plaintiff, by his letter of instructions to Peter Wirgman of the 8th of May 1810, constituted him his supercargo or agent, and that he could not in that character prejudice the ship owners by any violation of his instructions, notwithstanding he was himself a part owner of the vessel; but was liable, if at all, only in his individual capacity. That question does not belong to the case, and is not necessary to be inquired into. The suit was brought, not for damages for a violation of instructions by Peter Wirgman as supercargo, but to recover a sum of money retained by the defendants, on account of freight, out ot the proceeds of that part of the cargo which was the property of the plaintiff. The only question is, whether freight was earned or not? And that question lies within a narrow compass. The contract between the parties to this suit, to be collected from the charter party, the bill of lading, and the agreement of the 14th of May 1810 is, that the goods shipped by the plaintiff shall not be landed on the Island of Sylt, but at some permitted port on the continent of Europe, before any freight shall be earned; but in the event of the whole of the ports on the continent being shut, then, and not otherwise, the defendants shall be entitled to freight on the goods being landed in England, with a stipulated addition. By the term ‘‘shut,” as here used, is meant an occlusion, by the municipal regulations of the country; and unless in that sense of the term all the ports of the continent of Europe were closed, the vessel could not earn freight by going to England, unless the plaintiff by some act of his has made himself liable. And it i3 said that he has so made himself liable; that the letter of instructions to Peter Wirgman, of the 8th of May 1810, vested in him, as agent, a discretion to do whatever in his opinion would be most to the interest'of the plaintiff, in the event of his being prevented by live situation of affairs in Fait ope, from communicating with the Messrs. Parish fy Co. and entitled the shipowners to freight, on the cargo being landed, in the honest exercise of that discretion, at Hull in England, which it is contended, is a port in the North Sea, within the meaning of the charter party and bill of lading. That paper being ' of anterior date, must be considered as revoked by the agreement of the 14th of May 1810, so far as it may contain any thing inconsistent with that instrument; but on an attentive examination it will be found to give no such discretion. Pfiter Wirgman by it is referred for his government to a letter of the same date from the plaintiff to the 'Messrs. Parish & Co. in which they are expressly instructed!, that “the ship is not discharged from her freight until the cargo is landed in a port on the continent of Europe,” thus tying down the ship-owners, in relation to the freight to be earned, to a delivery of the goods at some port on the continent. These two letters, taken together, and not that to Peter Wirgman alone, must be understood as furnishing his instructions. But it is argued, in relation to the letter to the Messrs. Parish 8f Co. so far as it respects a delivery of the goods at a port on the continent, that the plaintiff had no power, by any instructions either to the Parishs or to his supercargo, to deprive the defendants of rights acquired under the charter party, or to control the general voyage, in which other shippers were concerned. The answer to that is, that the ship-owners had a right to make any other contract they pleased with the plaintiff, varying or annulling the charier party, in relation to his part of the cargo. They did enter into a subsequent separate agreement with him, to which we must look, for the rights of the parties. In that instrument the stipulation, that no freight shall be earned by landing the cargo in England, unless all the ports on the continent of Europe should be shut, is just as explicit as the agreement not to land the goods on the Island of Sylt. It may therefore as well be said, that the defendants would have been entitled to freight on the goods being landed at. Sylt, as in England; and it has not been contended that freight could have been earned by landing them at Sylt, though by the terms of the - charter party they might eventuallyhave been landed at that port. _ Hence it is not material to this case, what the true meaning of the charter party is, or what would have been the rights of the parties under that instrument as it originally stood. But admitting, for a moment, that the letter of the 8th of May to Peter Wirgman did give hitn the eventual discretion contended for, whether the contingency happened of not, on which the discretion was to arise, was a question for the consideration'of the jury, and perhaps the judge stepped aside in saying that it did . IJirgmañ was bound to seek a communication with the Messrs. Parish, & 6o. and to obey their instructions, and was not tied down to a communication from SyU only, which is merely mentioned as a convenient point of intercourse; and to show that he was not prevented from communicating with them, seven letters that passed between them were offered in evidence, two of which were from the Parishs to him. In their first letter of the 2d of October 1810, they request information concerning the cargo consigned to them, and by whom, and suggest difficulties respecting the future destination of the vessel, in the event of her being liberated, but sav there will be time enough to correspond on that subject, after being informed of the cargo on hand; at the same time telling him what course liad been pursued by several of their friends. And in their letter of the 80th of the same month, they instruct him, in the event of condemnation, to proceed to Copenhagen to prosecute an appeal; inform him of recent French and Danish decrees respecting colonial produce, and of the heavy duties imposed in Hamburg and Holstein, and speak of the difficulty at that time of pointing out a proper port of discharge, but promise to keep him informed of the state of affairs. To their avoiding to give positive directions touching the future destination of the ship, before she was liberated, no objection can be taken. But what was the course pursued by Peter JVirgman? In bis letter of the 8th of November he advised the Messrs. Parish fy Co. that the vessel had been released on the 5th, and that it was his determination to discharge the cargo in Flekke-fiord, and without waiting for instructions; and as if to prevent any, in his last letter of the 10th of the same month, only two days later, he informed them that it was hits intention to commence unloading on the Wednesday following; and afterwards, without consulting them on the subject, or giving any intimation of his intention, sailed for Hull in England, where he landed the cargo. It was his duty, after advising the Parishs of the liberation of the vessel, to wait at least a reasonable time, for their directions,- anti ifhe either declined, or by any improper act of his, prevented their further interference, he thereby violated his instructions, and removed the only ground on which the claim of discretion could rest. Thejudgmentofthecountycourtcan* not in any view of the subject be sustained. Whether it would or would not have been expedient to attempt the landing of the cargo on the continent, was not a matter to be inquired of by the jury. The only question properly before them was, whether the whole of the ports on the continent of Europe, were by municipal regulations closed against the admission of the goods of the plaintiff which, were on board the ship I'PHHam Tfilson? If they were, the vessel earned freight by going to England; if on the contrary any of them were open to such goods, the defendants had no right, under the stipulations in the agreement, tp charge freight on landing them in England\ and the plain* tiff is ¡entitled to recover any sum of money retained by them on that account, notwithstanding the distracted state of Europe might have rendered it hazardous to seek such open ports.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  