
    Harmony v. Bingham.
    When a covenant to transport goods, and deliver them at the place to which they are destined within a limited period, contains no exception, the obligation which it creates is absolute and unconditional.
    This construction is not barred by a subsequent covenant, that a certain deduction shall be made from the freight in the event of a delay in the delivery of the goods beyond the period limited.
    Where the bill of lading contains a stipulation to deliver the goods in good order, “the dangers of the railroad, fire, leakage, and all unavoidable accidents excepted;” the exceptions relate exclusively to damages affecting the condition of the goods, and do not vary the obligation of the carrier to deliver them within the period limited by a separate covenant.
    Hence, when the delivery of the goods is delayed beyond the time fixed by the l covenant, the carrier cannot defend himself by showing that the delay was in/, fact occasioned by unavoidable accidents.
    When there is a delay in the delivery of the goods and the stipulated reduction from the freight is not then made, but the agent having charge of the goods refuses to deliver them until the whole freight is paid, the payment thus exacted is to be regarded as compulsory, and creates no bar to a recovery of a sum as damages for the breach of the covenant, equal to the deduction that ought to have been made.
    
      (Before Duer and Campbell, J.J.)
    
    October 12, 13;
    October 30, 1852.
    There may he a duress of property as well as of the person, and a payment thus exacted can no more he treated as voluntary in the one case than in the other.
    As a general rule, when a bailee in the possession of perishable merchandise, exacts more than is due as the condition of its delivery to the owner, the money paid as the necessary means of obtaining the delivery may be recovered back, as a payment made under duress.
    Covenants are alternative only when they give an election to the party bound by them to perform one or other of the acts to which they relate, so that his fulfilment of one covenant is a discharge from his obligation to perform the other.
    Covenants to deliver goods within a certain time, and in case of a later delivery, to make a certain deduction from the price of transportation, are not alternative, since they give no election not to deliver the goods at all. The second covenant only fixes the measure of damages for the violation of the first.
    The breach of a covenant need not be assigned in the exact words of the covenant. It is sufiieient when the performance of the covenant in its true meaning and ¿import is negatived by a necessary implication.
    A variance between the declaration or complaint, and the proof, by which it is certain that the defendant was not and could not have been misled, may, under the provisions of the Code, be disregarded, without amendment, by a referee, as well, as by a judge.
    Motion to set aside the report of a referee denied, and judgment for the plaintiff affirmed with costs.
    Motion to set aside the report of a referee upon a case and exceptions. The action was to recover damages for the breach of certain covenants, on articles of agreement under seal between the plaintiff and the defendants. The. suit was commenced before the Code, and the declaration, the sufficiency of which to cover the demands of the plaintiff was denied by the counsel for the defendants, was in the words following:—
    
      Superior Oowrt, of the Term of October, one thousand eight hundred and forty-six.
    
    City and County of Hew York.—ss. Manuel X. Harmony complains of Thomas Bingham, Jacob Dock, William A. Stratton, and William Bingham, being in custody, &c., of a plea of breach, of covenant. For that whereas, heretofore, to wit, on the twenty-fifth day of March, one thousand eight hundred and forty-six, at the city and in the county of Mew York aforesaid, by certain articles of agreement, then and there made, concluded and agreed upon, between the said plaintiff of the one part, and the said defendants, by the name and description of “ Bingham’s Transportation Line,” Dépdt Mo. 276 Market-street, Philadelphia, of- the other part, one part of which said articles of agreement sealed with the seal of said defendants, the said plaintiff now brings here into court, the date whereof is the same day and year aforesaid, it was covenanted and agreed by and between the said parties, that the-said defendants party thereto, of the first part, in consideration of one dollar, the receipt whereof by them was duly acknowledged by said defendants, and of the prices thereinafter stated, would convey and transport from the city of Mew York to. Independence, in Missouri, and would safely deliver at Independence aforesaid, within twenty-six days from the first day of April then next, any and all goods which said plaintiff Manuel X. Harmony might send by said Transportation Line, on or before the said first day of April, one thousand eight hundred and forty-six, at the following prices, to wit: two dollars per hundred pounds weight for goods in boxes, and one Sli-lOOths dollars per hundred pounds weight for goods in bales. And, said defendants party to said articles, of the first part, further covenanted and agreed therein and thereby, that in case of the failure to deliver said goods at Independence aforesaid, within the said period of twenty-six days, the said party of the first part should deduct ten cents per hundred pounds from the freight bill for every day the' goods are delayed beyond the said period of twenty-six days.
    And the said defendants, in and by said articles, did further covénant and agree to and with said plaintiff, that they the said defendants would in the name of, and at the expense of said defendants, contract for and pay all freight of said goods from Pittsburg to Independence aforesaid; and that said defendants would fully indemnify and save harmless the said plaintiff, from any and all freight and expenses to be paid to third -parties for transporting such goods or any part thereof between the two last named places, and that said defendants would fully indemnify and save harmless the said plaintiff from any lien or .liens for freight, and from any loss or damage sustained by delay of such goods, by reason of such lien or liens, between the two last named places.
    And, the said plaintiff avers that he, the said plaintiff, at the city and in the county aforesaid, did on or before the said first day of April, one thousand eight hundred and forty-six, deliver to and send by said defendants, by the name and description aforesaid, one hundred tons of goods in boxes and in bales, pursuant to said articles, to be, by them the said defendants, carried and transported to and delivered at Independence aforesaid, at or by the time and in manner aforesaid, pursuant to' said covenant, which said goods so delivered as aforesaid, were of great value, to wit, of the value of one hundred thousand dollars.
    And the said plaintiff avers, and further in fact says, that although said goods were duly shipped and • sent in manner aforesaid, yet the. said defendants, not regarding their said covenant and agreement, did not in fact carry and transport said goods from the city of Hew York to Independence, Missouri, as aforesaid, and did not deliver the said goods at Independence aforesaid, within said twenty-six days from the said first day of April, one thousand eight hundred and forty-six, as in and by their said covenant said defendants were bound and obligated to do ; but thát said goods were not delivered by said defendants at Independence aforesaid until a long time, to wit, six months after the said first day of April, one thousand eight hundred and forty-six.
    And said plaintiff avers, that on the arrival of said goods at Independence aforesaid, and before the commencement of this suit, said plaintiff demanded said goods of said defendants, that said defendants then and there refused to deliver said goods to said plaintiff, unless said plaintiff would pay the freight thereon : and that said plaintiff thereupon, and before the commencement of this suit, and before the delivery of said goods by said defendants to said plaintiff, at Jhdependénce aforesaid, did pay to said defendants the freight on said goods, to wit, the sum of three thousand dollars; and said plaintiff avers that said payment of freight was made under an express protest and denial of said defendants’ pretended right to have or claim the same or any part thereof.
    And the said plaintiff further in fact says that, by reason of the delay of said defendants in making delivery of said goods at Independence aforesaid, pursuant to their said covenant, the said plaintiff was greatly hindered and delayed in forwarding his said goods to Santa Fe and other parts of Mexico, the markets where they were destined to be sent to be sold; that said goods depreciated in value by reason of such delay and non-delivery by said defendants; that said plaintiff thereby lost a profitable market and sale for said goods; and the said plaintiff was subjected to great expense in hiring and keeping men and teams at Independence aforesaid, and also subjected to the loss of his own personal time and services, to the damage of said plaintiff (including the said sum of three thousand dollars, so as aforesaid unjustly demanded by and paid to said defendants for freight, and which said plaintiff hereby claims to receive back), altogether fifty thousand dollars.
    And, so the plaintiff in fact says, that the said defendants (although often requested so to do), have not kept their aforesaid covenant, so by them made as aforesaid, but have broken the same, and to keep the same have hitherto wholly neglected and refused, and still do neglect and refuse, to the damage of said plaintiff, fifty thousand dollars, and therefore brings his suit, &c."
    To this declaration the defendant, Thomas Bingham, after craving oyer, and setting forth the articles of agreement, pleaded, first, non est factum, and second, that the plaintiff, if damnified, had been damnified of his own wrong, and appended to his pleas a notice, that upon the trial evidence would be given of certain facts therein specified, proving that the alleged delay in the delivery of the plaintiff’s goods had been caused solely by unavoidable accidents, and was therefore no breach of any covenant in the agreement. In February, 1850, an order was made founded upon the written consent of the attornies, referring the cause to Joseph S. Bosworth, Esq., as sole referee, to hear and decide all the issues, and report thereon, and upon the hearing before the referee, the counsel for the plaintiff in support of the action, read in evidence a stipulation in writing, accompanied with certain schedules, and signed by the attomies of the parties, which stipulation and schedules are as follows:—
    We hereby stipulate, upon the trial of this cause, to admit in evidence, with the same force and effect as if proved by competent testimony, the following facts (subject to all legal exceptions), viz.:
    That, on Wednesday, the 26th day of March, 1846, at the city of Hew York, the parties to this suit executed the articles of agreement, a copy whereof is hereto annexed, marked A.
    That, in pursuance of said articles of agreement, the plaintiff delivered to the defendants, at the city of Hew York, on Wednesday, the first day of April, in the year 1846, to be carried and transported from the city of Hew York to Independence, Missouri, three hundred and thirteen packages of goods, consisting of two hundred and sixty-six bales, thirty-three boxes, nine trunks, three baskets, and two kegs; containing, in all, sixty thousand five hundred and forty-eight pounds weight, as follows, fifty-three thousand and sixty-nine pounds weight in said boxes, one thousand and fifty-six pounds weight in said trunks, one hundred and eighty pounds weight in said baskets, and twenty pounds weight in said kegs; the receipt of which goods, for such transportation, was acknowledged by said defendants by a receipt, a copy whereof is hereto annexed, marked B.
    That the distance from Hew York to Independence, by the route usually pursued by the defendants in the business of transporting goods and merchandise, is nineteen hundred and seventy-four miles; as follows, from Hew York to Philadelphia, by the Oamden and Amboy Railroad, ninety-six miles; from Philadelphia to Columbia, in Lancaster county, in the stale of Pennsylvania, by the Philadelphia and Columbia Railroad, eighty-two miles; and from Columbia to Hollidaysburg,in Blair county, in said state, by the Pennsylvania canal, one hundred and seventy-two miles; and from Hollidaysburg to Johnstown, Columbia county, in said state, by a mountain railway, over ten inclined planes, thirty-six miles ; and from Johnstown to Pitts-burg, in Alleghany county, in said state, by canal, one hundred and three miles ; and from Pittsburg to St. Louis, in the state of Missouri, by the Ohio and Mississippi rivers, eleven hundred and.forty-five miles ; and from St. Louis to Independence, in Jackson county, in said state of Missouri, by the Missouri River, three hundred and forty miles; and that the usual time occupied by the defendants in transporting goods from New York to Independence is twenty-nine days, as follows, from New York to Philadelphia two days, thence to Columbia one day, thence to Hollidaysburg four days, thence to Johnstown one day and a half, thence to Pittsburg two days and a half, thence to St. Louis twelve days, thence to Independence five days.
    The said Pennsylvania canal, from Columbia to Hollidaysburg, is a public work belonging to the state of Pennsylvania; that the same lies along and is supplied by water from the Susquehanna River for the distance of forty-three miles, and by the Juniata River for the distance of one hundred and twenty-two miles : that this canal usually freezes up in the winter, and is not usually open until the fifteenth day of March of each year: that it did freeze in the winter of 1845-6. That on the fifteenth day of March, 1846, the said canal, by reason of a great and unusual freshet, was rendered impassable and not navigable; that the same was subsequently repaired by the state of Pennsylvania, which alone had power and authority to repair the same; and which, before the 25th day of March, 1846, gave official public notice to the defendants and others that the same would be ready for use and navigable on or before the fourth of April, 1846 ; but said canal continued not navigable and was impassable until Saturday the eighteenth day of April, 1846.
    That said sixty thousand five hundred and forty-eight pounds weight of goods, in the packages aforesaid, were, by the said defendants, transported from the city of New York, on the first day of April, a.d. 1846, by the route aforesaid, and arrived at said Columbia, on the third day of April, a.d. 1846, and were then and there ready to be transported to said Hollidaysburg forthwith. That on the said eighteenth day of April, a.d. 1846, three hundred and twelve of said packages of goods were transported by said Pennsylvania canal, from said Columbia to said Independence, in the state of Missouri, and thence safely and in good order delivered- to said plaintiff, on the 17th, 19th, and 23rd days of May, a.d. 1846, respectively, and freight paid thereon by said plaintiff, as appears by the three receipts hereto annexed, marked C1,2,3.
    That at the time of making said articles of agreement there was and is another route by which said goods and merchandise might have been carried and transported from the city of New York to Independence, in Missouri, to wit: by sea from New York to New Orleans, thence by the Mississippi river to St. Louis, thence to Independence as aforesaid, and that the parties to said articles of agreement knew of the same.
    That the annexed schedule, marked D, contains a particular statement of the goods contained in the packages aforesaid.
    
      Brown & Matthews, attorneys for Bingham.
    
      John M. Platt, plaintiff’s attorney.
    ARTICLES OF AGREEMENT—SCHEDULE A.
    Articles of Agreement, made this 25th day of March, in the year one thousand' eight hundred and forty-six, between Bingham’s Transportation Line, Depot No. 276 Market street, Philadelphia, party of the first part, and Manuel X. Harmony, of the city of New York, merchant, party of the second part, witnesseth, the said party of the first part, in consideration of one dollar, the receipt of which is hereby acknowledged, and of the prices hereinafter stated, doth hereby covenant and agree to, and with said party of the second part, that the said party of the first part will carry and transport from the city of New York to Independence, in Missouri, and will safely deliver at Independence aforesaid, within twenty-six days from the first day of April next, any and all goods which said Manuel X. Harmony may send by said Transportation Line, on or before the said first day of April, 1846, at the following prices, to wit, two dollars per hundred pounds weight for goods in boxes, and one 87j-100ths dollars per hundred pounds weight for goods in bales. And the said party of the first part covenants and agrees that, in case of failure to deliver said goods at Independence aforesaid, within the said period of twenty-six days, the said party of the first part shall deduct ten cents per hundred pounds from the freight bill, for every day the goods are delayed beyond the said period of twenty-six days. It is mutually covenanted and agreed between said parties, that in case said goods are lost on the rivers between Pittsburg and Independence aforesaid, the said Manuel X. Harmony shall pay freight from New York to Pittsburg on such goods, to said party of the first part, at the rate of one dollar and thirty-seven and a half cents per hundred pounds weight for goods in boxes, and one dollar and twelve and a half cents for goods in bales. The said party of the first part covenants and agrees to and with said Manuel X. Harmony, that said party of the first part, will in the name of and at the expense of said party of the first part, contract for and pay all freight of said goods from Pittsburg to Independence, and that said party of the first part will fully indemnify and save harmless the said Manuel . X. Harmony, from any and all freight or expenses to be paid to third parties for transporting such goods, or any part thereof, between the two last named places; and further, that said party of the first part will fully indemnify and save harmless the said Harmony, from any lien or liens for freight, and from any loss or damage sustained by delay of such goods by reason of such lien or liens between the two last named places; and it is agreed mutually, that said Harmony is to pay no commission or other charge except the prices above stated. In witness whereof the parties have hereto set their hands and seals - the day and year first above written.
    (Signed) Bingham’s Transportation Co.,
    Wm. Tyson, Agent, [l. s.]
    (Signed) M. X. Harmony. [l. s.]
    Signed, sealed, and delivered in the presence of
    W. J. Moorhead.
    RECEIPT OF GOODS—SCHEDULE B.
    Bingham’s Transportation Line,
    Depot, No. 276 Market street, Philadelphia.
    proprietors.
    Thomas Bingham, Philadelphia. Jacob Hock, “
    W. A. Stratton, “
    William Bingham, Pittsburg.
    AGENTS.
    William Tyson, No. 10 West street, New York.
    James Wilson, Howard street,
    Baltimore, Md
    Harnden & Co., Boston, Mass.
    Under the firm of Bingham, Dock, & Stratton.
    
      Received, Few York, April 1, 1846, of Manuel X. Harmony, the following packages in good order, marked as per margin, which we promise to deliver in like good order, the dangers of the railroad, fire, leakage, and all unavoidable accidents excepted (Sundays excepted), at the warehouse of Wm. Bingham, Pittsburg, and consigned to--, Pittsburg, he paying freight at the rate of- as contract, from Few York, per 100 lbs.; and on presentation of this receipt, receiving the packages annexed, at said warehouse, to forward to Independence.
    RECEIPTS FOR FREIGHT.—SCHEDULE C.
    [Fo. 1.]
    “ Independence, May 23, 1846.
    
      “ Received of M. X. Harmony, five hundred and ninety-nine 40-100ths dollars, in full for bill of freight and advances on 156 packages of merchandise, weighing 31,522 pounds, received from Messrs. Bingham & Co. or their agents, at St. Louis, and landed at this place on the 17th instant, which merchandise I refused delivering unless my freight and advances were paid, which was acceded to without delay by said Harmony.
    “E. H. Dennis,
    
      “ Clerk of steamboat Archer.
    
    “ Received of Chouteau & Valle.”
    [Fo. 2.]
    
      “ Independence, May 21, 1846.
    “ Received of M. X. Harmony, five hundred and thirty-seven 14-100ths dollars, in full for bill of freight and advances on 149 packages of merchandise, weighing 28,286 pounds, received from Messrs. Bingham & Co. or their agents, at St. Louis, and landed at this place on the 19th instant, which merchandise I refused delivering unless my freight and advances were paid, which was acceded to without delay by said Harmony.
    “ Chever,
    “ Glerk of Olvoe Plants
    
    
      [Ho. 3.]
    “ Independence, May 23, 1846.'
    “Received of M. X. Harmony, twenty-one 40-100ths dollars, in full for bill of freight and advances on 7 packages of merchandise, weighing 1,178 pounds, received from Messrs. Bingham & Co. or their agents, at St. Louis, and landed at this place on the 23d instant, which merchandise I refused to deliver unless my freight and advances were paid, which was acceded to without delay by said Harmony.
    “T. O. DmroAsr,
    “ Olerh 8. B. Nimrod.
    
    “ 6 bales, 1 keg.”
    The plaintiff’s counsel called as a witness Wm. B. Morehead, who, being duly sworn and examined, testified as follows:—Is a clerk in the city of Hew York, was a clerk of the plaintiff in the spring of the year 1847, and went with him to Independence. I was present when a majority of the goods in question, and sent by “ Bingham’s Transportation Line,” were delivered to Mr. Harmony, at Independence. The delivery was made at a point on the Missouri River, at a place called Owen’s Landing, about four miles from Independence.
    
      Q. What occurred when Mr. Harmony went there to receive his goods ? (This question was obj ected to by defendant’s.counsel, as calling for evidence irrelevant under the issue in this action; the referee overruled the objection, and allowed the witness to testify, whereupon the defendant’s counsel excepted, and the exception was duly noted.)
    
      A. I did not hear all that occurred. I understood what occurred—but did not hear but a small portion of it.
    
      Q. State what you heard at that time and what you saw? (This question was also objected to by the defendant’s counsel, as calling for evidence irrelevant under the issue, and also as calling for evidence of acts and declarations of the plaintiff and third persons without first showing, as the plaintiff was bound to do, that the defendant, or some person in his behalf," was there present; the referee overruled the objection, and allowed the witness to testify, whereupon the defendant’s counsel excepted, and the exception was duly noted.)
    
      
      A. I heard Mr. Harmony object to pay the freight on these goods. (The counsel for the defendant renewed his objection to the declarations of the plaintiff.) Harmony said he should sue for damages, because the goods had not been delivered at the specified time; I heard the captain of the steamboat, which had some of the goods on board, say, he was desired to collect the freight, and he should do it, before he delivered the goods. The bulk of the goods at this time were on board the steamboat, the remainder were in a storehouse on shore.
    Gwss-exammation.—Harmony, the plaintiff, since 1846, has, been engaged prosecuting a claim against the Government of the United States, for the destruction and seizure of the goods in question. I have read over the statement made by him in that claim. In that statement the cost and expenses of these goods is set down. Ho other valuation. There is a total amount of claim made out in that statement.
    The plaintiff then rested his case.
    ■ The defendant’s counsel then moved for a nonsuit, on the following grounds:—
    First. That this is an alternative covenant, and there is no breach of it properly assigned in the declaration: the agreement .being to deliver in twenty-six days, or deduct from the freight bill ten cents per hundred pounds, per day, the breach assigned should have negatived both alternatives; moreover there is no evidence of a breach of both alternatives of the covenant; there being none of a demand and refusal to deduct, and the plaintiff is therefore not entitled to recover.
    Second. That whether there was or was not a demand and refusal, yet, the plaintiff having paid the freight bill in full, he either paid it in compromise and settlement of a disputed claim, and in order to deprive the defendants of their lien for the charges of transportation of the goods, and so is estopped from claiming to recover it back; or, he paid it in his own wrong; and in any event, if recoverable at all, it must be recovered by the plaintiff in the equitable action of assumpsit for money had and received, and not in the technical action of covenant.
    Third. That the defendants being prevented, by inevitable necessity, from performing the contract in respect to the conveyance of the goods in twenty-six days, were excused from the obligation to deduct from the freight bill, and were not liable.
    Fourth. That the receipt of April 1, 1846, referred to in the stipulation, was so far a modification of the contract of the parties, as to exempt the defendants from any detriment from delay, occasioned by unavoidable accident, and the delay now complained of being of this character, and sufficiently excused, the plaintiff was not entitled to recover.
    This motion for a non-suit the referee denied, and the counsel for the defendant excepted to the decision, and the exception was duly noted.
    The defendant’s counsel thereupon offered to show, that about the first of April, 1846, the canal, spoken of in the articles of agreement and stipulation, was so nearly repaired, that the same might have been completed, and the goods might have been transported, and arrived at Pittsburgh, in the usual time, and within the time limited by the terms of the contract, and thence conveyed to the end of the route within 26 days, had it not been, that at that time, and after the execution and delivery of the contract, by reason of another freshet, similar in violence and extent to the first, as mentioned in the stipulation, there was a second breach in the said canal, similar to the first breach mentioned in the stipulation, and the goods in question were thereby necessarily and unavoidably prevented from being transported from Columbia to Hollidaysburgh, and detained at Columbia, from about April 4, to April 15, 1846, and thereby the delay complained of was occasioned.
    To this evidence Mr. Bonney, of counsel for the plaintiff, objected, the referee sustained the objection, and the defendant’s counsel excepted to the decision, and the exception was duly noted.
    The defendant then rested his case.
    In May, 1851, the referee reported in favor of the plaintiff, and that he had sustained damages by reason of the matters alleged in the declaration, to the amount of $1560/^ over and above his costs and charges.
    The referee gave in writing the following reasons for his decision:
    
      OPINION OF BEFEKEE.
    The question in this case is, what claim can the plaintiff make under the covenant counted upon, for not delivering within the 26 days, the goods having been actually delivered but after the expiration of the 26 days % Assuming that the bill of lading-does not modify the contract of 25th of March, 1846, I think that a deduction for each day’s delay should be made from the freight bill at the specified rate. An allowance at this rate would exceed the freight actually paid, or stipulated to be paid. The amounts paid to get possession of the goods are in the aggregate $1158T%V The following statement shows on what days the goods were delivered, how much on each day, the number of days’ delay, the amount to be allowed at the specified rate, and the amount actually paid and when paid,,viz.
    
      
    
    To be delivered in 26 days from the 1st of April, 1846, or on the 27 th of April, 1846.
    The deductions to be made at the specified rate, exceed the sums paid for freight by $122//6. The freight on the weight of the goods, as it was shown to have been by the receipts annexed to the stipulation (viz. 60,986 lbs.), assuming that in bales to weigh 53,069, would amount to about the sums paid.
    
      53,069 lbs. in bales, at $1 875 per cwt. , - $995 04
    7,917 lbs. in boxes, at $2 “ “ - - > 158 34
    60,986 lbs. weight of goods. Freight, $1,153 38
    There is no covenant to pay at this rate, as well as to deduct at this rate from the freight bill. I am of opinion that under this covenant, as the failure to deliver occurred from causes beyond the control of the defendants, their only liability is a loss of all right to any- freight.
    The defendants insist that the money paid by plaintiff was paid on compromise and settlement, and in order to deprive the defendants of their lien for transportation, or it was paid in their own wrong voluntarily, with a knowledge of the facts, and cannot be recovered back at all, and if at all, not in an action on this covenant. If it appeared that the defendants had actually paid the freight to the carriers for transporting the goods from Pittsburgh to Independence, so that no third persons had a lien on the goods for freight on their arrival at Independence, which would authorize them to retain the goods until the freight was paid, and that the freight .was paid to defendants with a knowledge of these facts, merely because the defendants, in violation of their covenant, refused to deliver without the freight was first paid, I should feel much doubt whether the plaintiff could recover it back. (4 Cowen, 428; 4 J. E. 220; 9 Co wen, 674.) The declaration alleges payment of freight at Independence to the defendants. The fact as stipulated by the parties is, that this freight was paid to earners, who transported the goods from St. Louis to Independence. The sums demanded and paid covered their freight, and the charges of transporting to St. Louis, which they advanced on receiving the goods at that place. They had a lien for their advances and their freight, and had a right to retain, until they were paid. The plaintiff could not by a resort to any legal remedy get possession without paying. He did not pay voluntarily or in his own wrong. The variance between the allegation and proof, has not actually misled the party to his prejudice, in maintaining his defence in this "respect upon the merits. The point is, that the plaintiff was wrongfully compelled to pay and did necessarily pay the sums claimed for freight, in order to obtain possession of his goods. The declaration avers payment to the defendants. The admitted facts, as agreed upon by stipulation before the trial commenced, show that it was paid to the carriers, who had a right as against all parties to this action, as a condition to their being bound to give up the goods, to exact the payment. Actual justice requires that the plaintiff should not under such circumstances fail to recover, on account of the language in which the breach is expressed. Sections 169,170, and chap. 1, of title 1, of the act of April 11, 1849, to facilitate the determination of existing suits, leave me at liberty, as I think, to disregard the alleged defect in the declaration, and I accordingly report’ in favor of the plaintiff for - $1158 44 and interest from Hay 23, 1846, to Hay 8,1851, 402 08
    Total, Hay 8,1851, - - $1560 52
    J. S. Boswoeth,
    
      Referee.
    
    
      A. Mathews, for the defendant,
    in moving to set aside the report, insisted upon the following points:—
    I. The covenants declared upon make an alternative covenant, the agreement being according to its legal effect a covenant to transport and deliver the goods in twenty-six days, or deduct from “ the freight bill ” ten cents per hundred pounds per day, for each day’s delay; the breaches assigned should have negatived both alternatives, but there is neither averment nor proof of refusal to deduct from “ the freight bill.” (Lowe v. Peers, 4 Burr R. 2228; Fletcher v. Deytch, 2 Term. R. 32; Slosson v. Beadle, 7 Johns. R. 72; Smith v. Smith, 4 Wend. 468; Pearson v. Williams, 24 Wend. 244; Pearson v. Williams, 26 Wend. R. 630; Farnham v. Ross, 2 Hall R. 167; Watts v. Shepherd, 2 Ala. R. 425; Jones v. Green, 3 Young & Jer. R. 298; Duckworth v. Allison, 1 Mees. & Wels. R. 412; Rawlinson v. Clark, 14 Mees. & Wels. R. 187.)
    1. The evidence offered, if it proved any cause of action at all, did not sustain the declaration, but rather showed a failure to indemnify the plaintiff “ against freight and expenses paid to third parties,” and liens for freight and expenses from Pittsburgh to Independence, and beyond the defendant’s route. The plaintiff proved a payment of some freight, and advances to clerks of steamboats; but there was a failure of proof as to whether or not the deduction from “ the freight bill ” provided for in the agreement was made.
    2. There was no proof that the captain or clerks of the steamboats were or pretended to be the agents of the defendants. Were they such agents to liquidate and settle this claim for demurrage ?
    3. The plaintiff has misconceived the effect of the covenants contained in the articles of agreement; he should have declared against the defendants for not deducting from “ the freight bill ” after they had failed to deliver in twenty-six days; in lieu of that the gravamen of his complaint is, that he paid freight without calling on the defendants to deduct, or giving them an opportunity so to do,
    II. If it be admitted the plaintiff paid ^the freight bill” in full, then he either paid it in compromise and settlement of a dispute, or he paid it in order to deprive third parties of their lien for freight and expenses; or he paid it voluntarily in his own wrong; and in any event, the covenant to dedüct from “ the freight bill” is waived and extinguished by the aet of the plaintiff; and his remedy, if any, is in the equitable action of assumpsit, for money had and received, to recover his excessive payment. (2 Law. 419,1 Wend.; Russell v. Cook, 3 Hill, R. 504; Weyman v. Farnsworth, 3 Barb. S. C. R. 369; Robinson v. City of Charleston, 2 Richardson R. 317; Chase v. Donnell, 7 Greenleaf, 134; 2 Sand. S. C. 475.)
    HI. The defendants being prevented, by inevitable necessity, from performing the contract in respect to the conveyance in the twenty-six days, were excused from the obligation to deduct from the freight bill, and were not liable. (See Stipulation; Parsons v. Hardy, 14 Wend. 215; Bowman v. Teal, 23 Wend. 306; Beebe v. Johnson, 19 Wend. 500; B. & Ald. 342; id. 53; 4 Wheat. 204.)
    IV. The receipt of April 1st, 1846, being a contemporaneous act of the parties under the agreement, was so far a modification thereof as to save the defendants from damages resulting from delay, occasioned by “ unavoidable accident;” and the delay, now complained of, being of this character, and sufficiently excused, the plaintiff is not entitled to recover. (Case, fol. 57; Parsons v. Hardy, 14 Wend. 215.)
    V. The referee erred in the admission and exclusion of testimony.
    VI. The report should be set -aside, and judgment ordered for defendants,
    
      
      B. W. Bonney, for the plaintiff,
    rested his argument on the following points, which he discussed at large :—
    I. The testimony of the witness Morehead was admissible, and properly received, to. show under what circumstances the goods were delivered, and why the freight was paid. What was then said was part of the transaction•—-part of the res gestae. (1 Greenleaf’s Ev., § 108, 9, 10; 4 Phillips’ Ev.—C. & H. notes—180 to 188, and cases cited.)
    H. The motion for a nonsuit was properly denied by the referee. 1. The covenant by defendants is, first, that they will convey and deliver, &c.; and secondly, that in case of failure to deliver they shall deduct, &c. The declaration avers that defendants did- not deliver, and that plaintiff demanded the goods, which defendants refused to deliver unless plaintiff would pay the freight, which plaintiff thereupon did pay, under express' protest, and denial of defendants’ right to claim it. The proof fully sustains the declaration. 2. The payment of the freight in full was neither in compromise or settlement of a disputed claim, nor made by plaintiff in his own wrong. • Such payment was made fropi necessity, to obtain the goods from parties lawfully in possession, and having ostensibly a lien on the goods for the freight—against which lien the defendants had expressly covenanted to protect them—and was made under protest, and a direct assertion of plaintiff’s rights. 3. That the defendants were prevented by the delay in repairing the Pennsylvania Canal from transporting the goods in time, is no excuse ■ for the breach of their covenant. (Chitty on Contracts, Perkins’ Ed. 1848, p. 734, &c.) 4. The receipt of April 1, 1846, is not, nor was it intended to be, a modification of the original covenant by defendants. ‘ It was given merely to show what goods had been delivered to defendants to be by them transported, pursuant to their contract; and this is expressly so stated in the stipulation in relation to facts. Besides, there is nothing contained in the receipt which would excuse the delivery of the goods within the stipulated time. (Chitty on Contracts, p. 734, &c.)
    HI. The testimony offered by the defendants was properly ruled out by the referee, That the injury to the Pennsylvania Canal, and the delay of the state in repairing it, caused the delay in the transportation and delivery of the goods by defend-, ants, constitutes no defence to the action for breach of their covenant. ■ (Chitty on Contracts, p. 734, &c.)
    IT. The plaintiff is entitled to judgment for the amount reported by the referee, with interest and costs.
    
      
       Mr. Justice Bpsworth having acted as referee, although present upon the argument, took no part in the decision.
    
   By the Court. Duer, J.

We entirely agree with the referee, that the obligation of the defendants, resulting from their covenant to deliver the goods of the plaintiff at Independence within a stipulated period, was absolute and unconditional, and that its effect as such was not at all varied by the clause which immediately follows in the articles of agreement. This subsequent clause was plainly inserted for the benefit of the defendants, by limiting the penalty, to which, in the event of a delay in the delivery of the goods beyond the specified period, they would be liable, to a sum not exceeding the freight they would be entitled to receive, and was certainly not designed to give an election to the defendants not to perform, at all, the duty they had undertaken to discharge.

It is not necessary to deny that in construing the articles of' agreement, the terms of the receipt or bill of lading for the goods must be taken into consideration, so that the two instruments may receive, if possible, a consistent interpretation. But there is in reality no variance or discrepancy that needs to be removed or reconciled. The exceptions in the bill of lading relate entirely to damages affecting the condition of the goods themselves, not at all to a loss resulting to the owner from a delay in their delivery. They are exceptions from the provision to deliver them in good order, not from the covenant to deliver them within a specified time.

The referee has very properly found that the delay in the delivery of the goods was produced by causes beyond the control of the defendants, in other words, was the result of unavoidable accidents; but he has just as properly decided, that this fact constitutes no defence to the action. By the terms of their covenant the defendants took upon themselves the risk óf being able tg deliver the goods within a required and specified period, and their failure to make this delivery, no matter from what cause it arose, was a breach of their covenant, rendering them liable in damages to the plaintiff" to the entire amount stipulated in the articles of agreement.

The plaintiff must therefore be entitled to remuneration equal to the deduction from the freight to which he was entitled when the goods were delivered, that is, a sum corresponding with the amount which he then paid, unless it has been proved that he waived all claim to this deduction, at the time of the delivery of the goods, or with a full knowledge of the facts made a voluntary payment of the whole freight that was demanded.

The proof, however, that has been given, so far from warranting this conclusion, establishes the fact, that the plaintiff, when he claimed the delivery of his goods, instead of abandoning, insisted upon his rights, and that the payment then made by him, so far from being voluntary, was, in judgment of law, compulsory and coerced. As the deduction to which the plaintiff was then "entitled, which- was equal to the whole freight demanded, was wrongfully withheld, it necessarily follows that the defendants, who stipulated that the deduction should be made, have violated the covenant, and that the plaintiff is entitled to recover back, as damages, the whole sum with interest, which, in disregard of his protest, he was then required and forced to pay. It is proved by the witness More-head, that when the plaintiff claimed- the delivery of his goods, he objected," as he had a right to do, to the payment of any freight whatever ; and that the captain of the. steamboat in which the goods had been transported from Pittsburgh, refused to deliver them upon any other condition than the payment of the whole freight he had been desired to collect, and which was in reality all that would have been due bad the goods been delivered in time; and the fact of such refusal is not merely proved by the witness, but is confessed in the receipts which the captain gave for the payments he exacted, B was under these circumstances that the required payment Was made, and there is no pretence for representing it as made in compromise of a disputed claim, since it embraced the whole sum that was demanded. It was a payment" extorted as the means of releas ing the goods from an unlawful detention-r-a payment extorted by duress, not indeed of the person, but of the property of the plaintiff.

The law upon this subject has been very accurately stated by Hr. Justice Sandford, in a case in our Reports, to which, as sustaining his own views, we were referred by the learned counsel for the defendants. In delivering the opinion of the court in the case of Fleetwood v. The City of New York (2 Sand. S. C. R. p. 475), that eminently learned and cautious judge admitted that there are “ cases of duress of personal property in which payments for its relief are deemed involuntary, and the money may be recovered back.” He added, that although “ most of these cases have arisen upon seizures of goods under revenue or excise laws, yet the principle has been extended to cases where bailees or others, who came lawfully into the possession of goods, have received more than was due before they would relinquish such possession, and that the principle is founded upon the movable and perishable character of the property, and the uncertainty of a'personal remedy against the wrong-doer.” (2 Sand. pp. 479,480.) On the subj ect of payments compelled by duress of property, the learned judge referred to the cases of Chase v. Dwinall, 7 Greenleaf, 134; Ellicott v. Swartwout, 10 Peters, 137; and Clinton v. Strong, 9 John. 300; to which many others might be added:— /

It is scarcely necessary to remark, as it is too obvious to escape attention, how exactly, in all respects, the well chosen and carefully weighed language of our lamented brother is applicable to the circumstances of the case now before us. The captain of the steamboat was a bailor who came lawfully into the possession of the goods, and who exacted more than was due as the condition of their delivery. The goods were movable and perishable, and considering their character and value, their remote situation, and the nature of the commerce—the inland trade with Mexico—in which they were employed, the personal remedy of the plaintiff against the wrong-doers was, in an eminent degree, inadequate and uncertain: It would be an abuse of language, and an affront to common sense, to say that the payment thus made by the plaintiff, as the necessary and only means of recovering the possession of his property and of securing himself from a heavy, immediate, and perhaps, in the result, irreparable and ruinous loss, can be treated as voluntary^ and in denying to him upon this ground the relief that he seeks, we should violate, as it seems to us, the plainest rules of morality and justice.

Such being our views of the facts and of the law of this case, we cannot do otherwise than affirm the judgment that has been rendered, unless we are compelled to assent to the validity of the objections that remain to be stated. These objections, in our opinion, do not affect the merits of the case ; but although they may be regarded as technical and formal, yet, if they are valid, it will be our duty to give them effect by a reversal of the judgment.

It is insisted that the two covenants of the defendants, the covenant to deliver the goods at Independence within a limited time, and that binding them in the event of a delay in the delivery, beyond the period specified, to make a proportionate deduction from the freight, are in their nature alternative, and that, according to the just rules of pleading, the breaches ought to have been so assigned as to negative both alternatives ; but that, in reality, it is not averred in the declaration, nor was it proved upon the trial, that there was any breach of the second covenant by the refusal of the defendants to make that deduction from the freight which they had stipulated to allow.

It is a necessary conclusion from the observations we have already made, that we do not consider the covenants in question as alternative. Covenants are alternative, in the proper legal sense of the term, whdn they give an election to the party bound by them to perform one or other of the acts to which they relate, and by the fulfilment of one covenant to discharge himself, wholly, from the performance of the other. The covenants in question gave no such election to the defendants. The first, imposed upon them a positive duty; the second, instead of releasing them conditionally from this duty, fixed the measure of damages for its violation. The defendants had no election not to deliver the goods, as both covenants suppose the delivery to be made. The declaration, therefore, in our judgment, would have been good had it set forth only the first covenant, and claimed damages for its breach, leaving the defendants to answer the claim for damages, by showing either that the necessary deduction from the freight had been made, or that the plaintiff, by a voluntary payment of the whole freight, had waived his right to demand it.

The objection, however, that we are considering is untenable, even upon the supposition that the declaration ought to have assigned a breach of both covenants-—-for such in our opinion is its actual form. Both covenants are set forth, and a breach of each is alleged, and the refusal of the defendants to make the necessary deduction from the freight is sufficiently averred, and has been clearly proved.

We have seen' that the deduction to which the plaintiff was entitled, was equal to the freight demanded and paid. The declaration therefore in averring, as it expressly does, that the plaintiff when the goods were delivered denied the right of the defendants to the freight they claimed, and made the payment under protest, avers substantially and by a necessary implication, that he claimed, and the defendants refused to make, the deduction which they had covenanted to allow. By holding the declaration to be bad and the plaintiff therefore not entitled to recover, because the breach, as assigned, negatives not the words, but only the meaning and import of the covenant, we should indeed entangle justice in a net of form,”—a reproach that in the present age, no court of justice can be willing to incur, or be excused for meriting.

It was next insisted, that even upon the construction that we have given to the covenants of the defendant there is a fatal variance between the declaration and the proof—a variance which makes it our duty to set aside the referee’s report. The declaration avers that the freight, which the plaintiff claims to recover back as damages, was paid to the defendants, whereas the proof shows, that the payment was made to the Captain of the steamboat who had the goods in charge. It is not denied, however, that if the captain is to be regarded as the agent of the defendants, the declaration is properly drawn, and the averment fully sustained by the proof.

•The conclusive answer, therefore, to the objection is, that the captain was the agent of the defendants; an agent, by whose acts and declarations, in our opinion, they were bound. They contracted personally to deliver the goods, not at Pittsburgh but at Independence, and although they were only the proprietors of the line that ended at Pittsburgh, their contract was entire and embraced the whole necessary transportation. The persons therefore whom they employed to transport the goods from Pittsburgh to Independence, and there deliver them, were their agents, for the plain reason, that they were acting at' their request and on their behalf, in the discharge of a duty which they had' themselves undertaken to perform. As no freight was to be paid until the final delivery of the goods, the captain of the steamboat was their agent, not merely to make the delivery, but for the collection of the freight, and as such they were bound to instruct him to demand no more than the sum that upon the arrival of the goods at Independence would be due to them under their agreement with the plaintiff. Under these circumstances the refusal of the captain to deliver the goods, upon any other terms than the payment of the whole freight, was their refusal, and the extorted payment made to him, a payment to themselves. The referee has intimated strong doubts whether the money thus paid could have been recovered back, had there been no subsisting lien upon the goods, or the payment had been made to the defendants in person, but the doubts thus expressed we are not to be understood as sharing. It is true that the case of the plaintiff is strengthened, by the fact that the captain of the steamboat had a lien upon the goods, for that portion of the freight which was due for their transportation from Pittsburgh to Independence ; but had there been no subsisting lien, and had the whole freight been exacted by the defendants in person, we must still have held that the plaintiff was entitled to recover. It would still have been true, that the defendants were bailees, exacting more than was due, as the condition of relinquishing their possession of the goods; and a payment made to them under a denial of their right, and for the sole purpose of reclaiming the goods from an unjust detention, we must still have regarded as coerced, and, therefore, void and recoverable. We however agree with the learned referee that if there was any variance between the declaration and the proof, it was a variance by which the defendants were not, and could not have been misled, and which, therefore, under the provisions of the Code, he was justified in disregarding.

The exceptions to the ruling of the referee in admitting the testimony of Morehead, and in rejecting the evidence subsequently offered to be given by the defendants, do not require a special notice or discussion. They are shown to be groundless by the observations already made.

The judgment is affirmed with costs.  