
    
      L. Halwerson vs. A. H. Cole.
    
    1. C. shipped on board a vessel, of which the plaintiff was captain, certain goods, the latter undertaking, by the bill of lading,- the dangers of the seas, only, excepted, to deliver them at a designated place, for which freight was to be paid, at stipulated prices.— The vessel having received damage from a gale, put into a port, short of the place of destination, where, upon examination, it was found that a portion of the goods were damaged, which were there sold for the benefit of the owners. In an action, brought to recover the balance due for freight, it was held that it could not be recovered, the goods not having been delivered at the port of destination.
    2. The only cases where the owner of the goods is bound to pay full freight without delivery, are those in which the goods have been thrown overboard for the general benefit, or so used, as to make the loss of them a subject of general average.
    3. The obligation to pay partial freight or pro rata itineris, can arise only from an agreement to accept the goods at a place, short of the place of destination.
    4-, The Captain was not authorized to judge of the expediency of selling the damaged goods for the benefit of the owner.
    5. A particular custom well established and understood, becomes a, part of the law, and contracts made at the place where such custom prevails, are construed in reference to the custom, but the testimony of a single individual is not enough to establish a usage of trade at a particular place, different from the usage which prevails at all other places.
    
      Before Evans, J., Charleston, Spring Term, 1841.
    Report of the Presiding Judge.
    This was an action to recover the amount of forty-five dollars twenty-two cents, for freight, being the balance due for freight of twenty bales of Hay, and one hundred and five bags of corn, c&c. (fee., shipped on board of the Schooner United States, and to be delivered at Pilatka, East Florida.
    It was proved at the trial, that the twenty bales of hay and the one hundred and five bags of grain, were shipped on board of the Schooner United States, of which the plaintiff was Captain, by Zealy & Wade, the agents of the defendant, on the 27th day of October, 1840; and that the amount of freight to be charged, was sixty-six dollars, twenty-five cents, at $2 per bale of hay, and 25 cents per bag of grain. The Schooner, before arriving at Pilatka, put into St. Augustine, Florida, in distress, having received damage from a gale; and it was found on examining her cargo, that the twenty bales of hay were damaged, and were ordered to be sold, for the benefit of the owners, by the surveyors of the port of St. Augustine, and that the nett amount of the sale, after deducting the expenses attending it, amounted to thirty-five dollars, eighty cents. The balance of the cargo, to wit, the one hundred and five hags of grain, were delivered at the port of destination. The defendant was also charged with the sum of fourteen dollars, seventy-seven cents, being his proportion of an account for general average.
    Under this state of facts, I ordered a non-suit, as I did not think the plaintiff was entitled to freight on goods, which he had failed to carry to the port of destination. I should however, state that Mr. R. Heriot, an Insurance Broker, proved that it was the custom of trade, to allow full freight on goods which had been sold at a port, short of the port of destination, for the. benefit of the owner.
    The above is the statement of the case agreed on by the counsel, (no notice of an appeal having been given to me on the circuit.) It is, I believe, a correct statement of the facts. I have only to add, that according to my understanding of the law, no "freight is earned, unless the goods are delivered at the port of destination, except in some few cases, of which the present is not one. If the vessel had been lost, no freight would have been due. If these goods had been entirely spoiled or thrown overboard, no freight would have been earned. The general rule is, that no freight can be charged without delivery, except they have been used for the benefit of the vessel, or in such way as to make the use of them a subject of general average, or the consignee accept of them at a place, short of the port of destination. The Captain was not authorized to decide on the expediency of selling the goods. The owner had aright to have them according to the contract. It is true, Mr. Heriot said it was the custom of trade, in Charleston, to allow freight in such cases. But I did not consider such proof as establishing a custom, ip contravention of the general law of the land.
    A motion was now made to reverse the order of non-suit in this case, on the ground,
    That both the custom of trade and the settled law of the land, allows full freight on goods, sold at a port, short of the port of destination, when such good,? are in a damaged gtate, caused by the accidents of the sea.
    
      Kunhardt, for the motion,
    cited 1 Story’s Rep., 342, 343 ; 3 Kent’s Com., 224; 2 Caine’s Rep., 263 ; 12 J. R., 107; Abbott on Shipping, 318 ; 3 J. R., 321-.
    Ashby, contra.
   Curia, per

Evans, J.

By the bill of lading, the plaintiff undertook to deliver the goods to the defendant at Pilatka, the dangers of the seas only, excepted, he, the defendant, paying freight for the same at the prices stipulated. This is an entire contract, and unless there be a performance on the part of the carrier, the owner is not bound to pay freight. This is clearly decided in the case of Hunter vs. Princeps and others, 10 Ea. R., 377. In that case, Lord Ellenborough says, “ the ship owners undertake that they will carry the goods to the place of destination, unless prevented by the dangers of the seas, or other unavoidable casualties, and the freighter undertakes that if the goods be delivered at the place of their destination, he will pay the stipulated freight; but it is only on that event, viz: of their delivery at the place of destination, that he, the freighter, engages to pay any thing.” The same doctrine has been fully recognized in the Supreme Court of the United States, in 7 Cranch, 362, and I have been able to find no case, either English or American, which sustains a contrary position. The general rule is admitted to be as stated; but it is supposed that the usage of trade in Charleston has established a different rule. If a particular custom be well established and understood, it becomes a part of the law; and contracts made at the place where such custom prevails, are construed in reference to the custom. But such custom must be clearly established, and I do not think the evidence of a single individual is enough to establish a usage of trade for Charleston, different from the general rule which governs at all other places, both in England and America. If the ship be wrecked and the goods are lost by the perils of the sea, no freight is due, because the condition precedent has not been performed. The only cases where the owner of the goods is bound to pay full freight without delivery, are those in which the goods have been thrown overboard for the general benefit, or so used as to make the loss of them, a subject of general average. In such cases, the payment of the general average is a substitution for delivery, and subjects the owner to the payment. There are some cases, where the owner is liable to pay partial freight or pro rata itineris, but the obligation to pay this can arise only from an agreement to accept the goods at a place, short of the place of destination. In the case of Hunter vs. Princeps, before quoted, the- vessel had been captured, re-captured and carried into St. Kitts, where she was wrecked, and the goods sold by order of the Court of Admiralty, on the application of the Captain, but without orders. The sale was made for the benefit of all concerned, and the application on the part of the Captain for the sale bona fide. Y et it was held, the shipper was not bound to pay freight even pro rata itineris, but was entitled to recover for his goods, without any deduction for freight. The only ground upon which the plaintiff’s case can be placed with any appearance of plausibility is, that in the condition in which the Captain was placed, he was so far the agent of the shipper, as to be authorized to determine on the expediency of selling the damaged goods, for the benefit of the owner. Now, it does not seem to me, this position can be maintained. There.is no authority to sustain it. The master is the general agent for the ship owners, and cases may arise, in which his act might bind both the insured and insurer; but I have found no case where, on the question of freight, he is considered the agent of the shipper, in a matter of personal interest to himself. It would involve the absurdity, that one of two parties to a contract, was the agent of the other, to determine the expediency and necessity of dispensing with the performance of his part of the agreement. But besides this, the liability of such an agency to abuse, and the strong temptation to abuse it, are sufficient reasons why no such principle should be established as a part of the law of the contract. Cases may arise, in which there may exist a necessity for disposing of a damaged cargo. - If it be for the general benefit, it may be a subject of general average. But in all other cases, the shipper has a right to insist on the delivery of the goods, as a condition precedent to the payment of freight. It is no answer, to say the ship owner acted bona fide, and the sale was for his benefit. He has commissioned no one to judge for him on that subject. He may prefer to have the goods in a damaged state. It is his right, and cannot be withheld from him, without a forfeiture of the demand for freight. The opinion of this court is, that the circuit decision was right; and the motion is dismissed.

Richardson, O’Neall, Bhtler, and Wardlaw, JJ., concurred.  