
    M'NAIR vs. THOMPSON.
    Appeal from the court of the first district.
    Harper, for the plaintiff.
    This action is brought to recover the penalty of a charter-party, on account of the violation of it by the ap-pellee. The charter-party expressly stipulates that the appellee should proceed with a cargo of the plaintiff and appellant, consisting principally of fruit, from the port of Cadiz to Havana, and from thence to New-Orleans, and for the fulfilment of this engagement the appellee bound himself in the sum of five thousand dollars. The evidence in the cause proves, that instead of proceeding directly to Havana, the vessel went into Porto Rico to land passengers, and although the appellee pretends that he was under the necessity of going into Porto Rico, on account of a want of fuel, yet it is proved that he had taken passengers at Cadiz to be landed at Porto Rico, and therefore intended, in any event, to go into Porto-Rico. It is contended that this was a departure from the voyage, and such a violation of the written contract as to make the appellee liable to the penalty.
    
      If A sues for B, the latter is the real plaintiff.
    The whole penalty cannot be recovered on a partial breach.
    
      
      East'n District.
    
    
      June, 1818.
    To obviate this charge, the appellee alledges a consent on the part of N. Fowler, the agent of the appellant, to go into Porto Rico, and produced the parol evidence of his captain and mate in the court below, to prove this consent. To this evidence the counsel for the appellant excepted, as well on the general principle of law that no parol evidence shall be received to contradict, vary or disannul a written agreement, as upon the special authority of Powel on 
      contracts, 435 & 436. Upon this principle, it is contended that all the parol testimony in the cause tending to prove the consent of the freighter to touch at Porto Rico is inadmissible, even if true; but it is also contended, that the evidence is in itself incredible: for it cannot be supposed, that an agent who had contracted for a specific voyage, and of which he had given notice to his owner or principal, in order that he might effect an insurance on the cargo, would have consented to such a change in the voyage as would have discharged the underwriters, and annulled the policy-if, as is pretended, he consented to this change in the voyage, why was it not endorsed on the charter-party? We find a circumstance of much less importance carefully noted on the contract, to wit: the deficit in the amount of cargo, which had been stipulated for.
    The circumstance of the appellee having pro- tested at Porto Rico, although it is evident he intended going there when he left Cadiz, is conclusive evidence that he knew he had no right to enter that port. From all these circum- stances it is contended that the evidence, going to prove the consent of the appellant’s agent to touch at Porto Rico, is incredible, and on that account ought to be disregarded by the court.
    If then parol evidence against the written written charter-party in this case be inadmissible on legal principles, or if in this instance it be disregarded as incredible, it follows that the conditions of the charter-party have been broken by the appellee, and therefore the penalty incurred. But it is said the whole penalty is not recoverable unless it be shewn that actual damages to the amount of the penalty have been sustained. Of what importance then is it to the contracting parties to stipulate a penalty? If the actual damage sustained is to be the criterion of of decision, that must be shewn by testimony, and the insertion of a penalty in a contract is altogether nugatory. The penalty in this case was the measure of damages, agreed upon by the parties themselves, and is therefore equally obligatory on them as any other stipulation in the contract.
    In this case however, it is contended, that actual damage to the amount of the penalty has been sustained by the appellant. The evidence in the cause proves, that the current price of raisins at New-Orleans, at the time the Oswego ought to have arrived here, if she had proceeded direct from Cadiz, was about five dollars per box. But the account of rates, as made by the port wardens, shews that the average price for which these raisins were sold in this market was about one dollar and a quarter box. Two witnesses, who were called upon in the first instance by the officers of the customs, swear that the raisins were damaged seventy per cent. Now, it is in proof, that the raisins and other fruit were in good order when shipped; but, in consequence of being detained improperly in hot latitudes, they sustained a loss of seventy per cent. in the opinion of two witnesses, and an actual loss of more than three dollars per box, as shewn by the report of the port wardens. The actual damage of the whole cargo, thus sustained, will appear to be equal to the penalty expressed in the charter-party.
    The objection against M'Nair's right to sue on the charter-party, on the ground that he was not privy to its execution, is sufficiently obviated, by having proved the fact, that Fowler, who signed it, was the agent of M'Nair; and, although the appellee may not have known the name of Fowler's principal, at the time of ma- king the contract, yet he knew he was contract- ing with an agent, for he acknowledged the fact to one of the witnesses, on the passage. The fact then, of Fowler being the agent of ap- pellant, gives to the appellant the right of action on the contract made for his use; and it also establishes the competency of Fowler's evidence; for, it will not be denied, that an agent is a competent witness for his principal.
    Excluding from this case all parol evidence, tending to contradict or essentially vary the written charter-party, it seems to amount to this, that Thompson, the appellee, instead of proceeding from Cadiz to Havana, and from thence to New-Orleans, as stipulated by the charter-party, has been guilty of a deviation in the voyage, in going into Porto-Rico, for his own benefit, and contrary to the consent of the freighter, and that, in consequence of that deviation, the voyage was protracted, in hot latitudes, and the cargo ruined.
    If this be the true state of the case, the only question is, whether the appellee is liable for a violition of his contract.
    Dick, for the defendant.
    The grounds of defence The in this action, are two-fold-1. as to the mode of action, and-2. as to the merits of the case.
    I. The petition is in the name of "Nathaniel Fowler, of Beverly, who sues for the use of Rob. H. M'Nair, of New-Orleans," and is founded upon a charter party of affreightment, entered into at Cadiz, the 4th November, 1817. November 1817 between the said "Nathaniel Fowler, of the one part, and Solomon Davis, master of the American brig Oswego, of the other part:" the said Davis agreeing to receive from the said Fowler, on board the said vessel, 120 tons of merchandize, with which he is to proceed to the port of New-Orleans: in consideration whereof, the said affreighter agrees to pay the sum of $1950-and it is further agreed, that the said Davis shall touch at the port of Havana, where the affreighter is at liberty to exchange a part, or the whole, of the said 120 tons of merchandize, paying at the said port one-half of the freight and primage, &c.-and, for the true performance of all and every of the conditions in the said charter-party, "the said parties bind themselves, reciprocally, each to the other, &c. in the penal sum of five thousand dollars." Thompson, the owner of the Oswego, defendant and appellee, confirmed the contract entered into by captain Davis. It is alledged, that the conditions of this charty-party have been violated, by the Oswego's stopping at Porto-Rico, on her voyage from Cadiz to Havana; and that, consequently, the penalty is forfeited. In order to enforce the payment of this penalty, (among other things,) the present suit was brought: the defendant, not being a resident of Louisiana, his property was attached, in the name of Rob. H. M‘Nair, to whom, it was said, the penalty accrued, and to whom, as the alledged owner of the Oswego, shipped by Fowler, in his own name, and in his own property, is indebted. Now, it is conceived, that M‘Nair cannot, by any subtlety of pleading, as a party, nominal or real, or by any principle regulating contracts, maintain an action on a covenant such as this, to which he is not a party or privy, upon which he could not he liable, and of which any stipulation that he may desire to enforce, is in favour of another, under whom, whatever may be his actual relation, in point of interest, he has not derived any legal title. The principle that one, not party or privy to a deed or other negotiable instrument, cannot maintain an action for the breach of its conditions, is fully supported by the English authorities-1 Chitty on pleading 5, & seq. 1 Salk. 197-and equally deducible from the rules of the civil law, in relation to the parties to, and the effects of, contracts.
    1. As to the parties to a contract. In general, a person can stipulate, in his own name, but for himself. Civ. Cod. 262, art. 19. Cases of stipulating for another. Civ. Cod. id. art. 20, 21. A person is deemed to stipulate for himself. 
      &c. unless the contrary be expressed, or result from the nature of the contract. Civ. Cod. 264, art. 22.
    
    Illustrations of the rule, that a person can stipulate only for himself. 1 Poth. on oblig. n. 53, 54, 55, 74 et seq.
    
    
      2. As to the effect of contracts. Agreements have effect only between the contracting parties. Civ. Cod. 270, art. 65.
    The obligations which arise from agreements, and the rights which result from them, being formed by the consent and concurrence of intention of the parties, they cannot oblige or give a right to a third party, whose intention did not concur in forming the agreement. Poth. on oblig. n. 87.
    
    One of the exceptions given by Pothier, in the foregoing number, being that of a factor binding his principal, it may be proper to consider here the character of Fowler’s agency; and whether, if it had been fully declared, when stipulating with Thompson, it would have been binding on M‘Nair, and, consequently, whether he, M‘Nair, could have derived any right under it.
    By the letter of attorney from West and M‘Nair, Fowler was authorized to sell the ship Moskow, and to invest the proceeds in merchandize, to be shipped to West; and directing him, Fowler, to conform to such instructions as M'Nair might give.
    The letter of instructions does not enlarge the authority contained in the procuration-and, taken together, they merely constitute Fowler a special agent for specific purposes: he had no power of binding his principals by an instrument, under seal, unless as related to the transfer of the ship, or by a penal instrument of any kind, unless resulting usually or necessarily from the character of agency with which he was clothed. But, is there any thing in the usages of trade, which authorizes a factor, when directed to make a shipment of merchandize, to charter a vessel for the undertaking, and to bind his principals in such stipulations, and subject them to such penalties as he may deem proper? It is conceived not-nor is it conceived that there would be any necessity for such a proceeding, or any justification of it, unless the factor were specially instructed.
    "The attorney cannot go beyond the limits of his procuration.” Civ. Cod. 424, art. 24.
    An agent, constituted for a particular purpose, and under a limited and circumscribed power, cannot bind the principal by any act, in which he exceeds his power. 3 Term Rep. 757.
    
      If then, Fowler could not bind M'Nair by such an instrument as that on which the present action is founded, it is presumed he, M'Nair, can derive no right under it.
    But, at any rate, it was incumbent, in order to produce any privity of contract between M'Nair and Thompson, that Fowler should have declared the character in which he contracted, if intending to contract as agent, and that that character should appear on the instrument.
    The plaintiff ought to have chosen either to sue on the covenant for damage, or for the penalty: he cannot, in the same action, demand both penalty and resulting damage. This is the English rule; and our code says, that a party cannot demand principal and penalty together. Civ. Code, 284, art. 129, Ev. Poth. on oblig. n. 234, or 342. The creditor ought to elect.
    II. Upon the merits of the action, we contend-1. that the stopping at Porto-Rico was by stipulation-2. that it was necessary, or-3. that it was not such an act as forfeited the penal sum mentioned in the charter-party-4. that no damage has been shewn to have resulted from the stoppage, or-5. that if such damage has accrued, it has been removed by the affreighter's receiving his merchandize at Havana and at New-Orleans, without complaint.
    1. The stoppage at Porto-Rico was by stipulation. This is fully proven by the testimony of Cooper, the captain, and Lake, the mate, of the Oswego, who both say it was notorious at Cadiz, that they were to stop at Porto-Rico; that Fowler consented to this, and came from the shore to the vessel, in company with certain passengers, intended to be landed at Porto-Rico, But, it is said, that any parol testimony, going to shew Fowler's consent to the stoppage at Porto-Rico, was inadmissible, as it was dispensing, by parol, with the conditions of a written agreement. While the general rule is readily admitted that testimonial proof cannot be received, except under certain circumstances, to contradict a written agreement, it is denied that that rule is applicable here.
    The voyage, in this case, was from Cadiz to New-Orleans, with permission to the affreighter to stop at Havana, and exchange his cargo. Now, has an agreement to stop at Porto-Rico-a place directly on the rout from Cadiz to Havana, and, as we will shew, it is usual for vessels on that voyage to stop-any thing in it repugnant to the charter-party, or which dispenses with or annuls any of its conditions. Clearly, if operating upon the charter-party, such testimony merely operates an enlargement or explanation of its stipulation; and that this may be done by parol is, we think, supported by strong authority.
    The owner of a vessel covenanted, by charter-party under seal, to sail from the Thames to a port in the British channel, there to load such goods &c. as the freighters should tender; after- wards agreed by parol that the ship instead of loading at some port in the channel should load in the Thames. By the charter-party, more- over, the freight was to commence from the day of the vessel’s sailing from Gravesend; by the parol agreement, it was to commence from her entry outwards, at the custom-house. Ruled that there was no conflict between the charter- party and the subsequent agreement. White vs. Parkin, 12 East, 578. The case of Les- lie vs. De la Torre is cited in the foregoing case, page 583, where a party wished to prove by parol, in the face of a charter-party, that Corunna had been substituted for Portsmouth. But Lord Kenyon decided “that the agreement by charter-party being under seal, the plaintiff could not set up a parol agreement inconsistent with it.” This decision of Lord Kenyon’s is con- confirmed in the case of White vs. Parkin, but held not applicable to that particular case. Phill. Ev. 433.
    On a charter-party, dated the 6th February, conditioned that vessel should sail before the 12th, averment sustained that the charter-party was not executed until the 15th March, whereas the condition was dispensed with. Hall vs. Cazenove, 4 East, 477. If such can be averred, it is a necessary consequence that it can be shewn in evidence. 2 Ev. Poth. 208.
    Action on a charter-party stipulating that the merchant should have the exclusive use of the ship and cabin, Evidence of custom admitted, against the stipulation, to allow the master to ship merchandize. Abb. on sh. Am. Ed. 242.
    The East India Company chartered a vessel for trade and war, and sent her on a voyage of examination or discovery, in which she was lost. Lord Kenyon held that the company were bound to the owners, until it was after- wards ascertained that the master was acquaint- ed with the destination of the vessel, before he left England, without any objection on the part of the owners. Jacobson's Sea Laws, 222. The loss in the foregoing case must have been on a voyage different from that contracted by the charter-party; and the made, of the captain and owners consenting to it, must have been by parol.
    The time of performing the condition of a bond enlarged by parol; and where substantial but not literal performance, parol evidence admitted to wave any further performance. 3 Johns. 528. 1 Johns. Cas. 22.
    A receipt, although absolute, in its terms and expressing to be in full, is not conclusive, and parol evidence is admissible to shew a mistake in it, or explain it. 1 Johns. Cas. 145. 2 2 Johns. Rep. 378. 5 Johns. Rep. 68. 3 Johns. Rep. 319. 8 Johns. Rep. 389. 9 Johns. Rep. 310.
    Parol evidence may be given to contradict a written simple contract, or to shew that the whole of it was not reduced to writing. 6 Mass. Rep. 434.
    "Stress has been laid on the circumstance, that the agreement is contained in a solemn and sealed instrument. The policy of that act (the statute of frauds) in relation to certainty, and the avoiding of prejudices, is as much answered by a written as by a sealed instrument. If it were necessary to quote authorities on this point, Powell on contracts, 436, &c. states many instances in which the most solemn and sealed agreements were considered as altered and and waved by acts other than the execution of instruments deemed of equal dignity with them; the spirit of equity, especially as applying to the construction of the statute of frauds, exploding the maxim, dissolvitur eodem ligamine quo ligatur." By Roane, justice, Cringan vs. Nicholson, 1 H. & Mumford 439, 40. In which case a contract under seal was set aside, on parol evidence of its having been vacated and abandoned.
    2. The putting into Porto-Rico was necessary. It is admitted that the intention, on leaving Cadiz, was to stop at Porto-Rico: but the intention to deviate is not a deviation. Park on ins. 314, Marshall on ins. 231. The evidence is strong and satisfactory, that it was necessary to put into some place for fuel, before reaching Havana, and Porto-Rico was assuredly the most convenient place. If then, it was necessary to put into some port, and the Oswego had been lost afterwards, the putting in would not have been such a deviation as would discharge the insurers; and, a fortiori, it cannot be deemed such as would give the freighter a claim for damages.
    3. In the absence of all stipulation to that; effect, and of all necessity, the stopping at Porto-Rico was not such an act as forfeited the penal sum in the charter-party.
    In the construction of an obligation with penal clauses, the real intention of the parties ought to be sought after, and carried into effect, where it can be discovered from the instrument itself. Where it is clearly inferable from the nature and terms of the contract, that the parties have estimated and liquidated their damages, and have inserted the amount to be paid in case of non-performance, the court would be bound so to consider it. The cases in the English books, 4 Burr. 2228, 2 Term Rep. 34, where penalties have been considered in the nature of liquidated damages, are either, where it appears from the contract that the penalties have barely exceeded the damages sustained; or where, from the nature and circumstances of the case, no rule for estimating the actual damages could be adopted, or it was manifestly the intention of the parties that the sum inserted should be as a compensation, and not as a penalty. This where A and B entered into an agreement, by which A agreed to convey to B 700 aces of land, to be appraised in part payment for a farm, valued at $3750, which B agreed to sell to A; and it was covenanted that, in case either party failed to fulfil the agreement, the party failing to perform, should forfeit and pay to the party who should fulfil the agreement, the sum of $2000, as damages, it was held that the $2000 were to be considered as a penalty, and not as liquidated damages. Dennis vs. Cum-mins, 3 Johns. Cas. 297.
    But where A, in consideration of 500 dollars, covenanted to convey to B 50 acres of land by a good deed &c. or in lieu thereof to pay him 800 dollars; it was held that B was entitled to recover, on a breach of the covenant 800 dollars; the same being in thin nature of liquidated damages, and not a penalty. Slossem vs. Beadle, 7 Johns. Rep. 72.
    The decision on the first of the above two cas- es went on the ground, that it never could be presumed that the parties had the penal sum in view, as a measure of damages, it being entire- ly disproportionate to the matter to be perform- ed by the covenant, and not reciprocal-and, in the second, that "the defendant had received the consideration of 500 dollars; and at end of the year he was to convey, or in lieu thereof, pay the 800 dollars. This was an alternative reserved for his election."
    By the stipulations of the charter-party between Fowler and the defendant, the latter was to receive, in consideration of performing the porforinin the voyage, the sum of 1950 Spanish dollars; and for the true performance of all and every of the conditions of the charter-party, the parties "bound themselves reciprocally each to the other, the affreighter, the destined cargo, and the captain, his said vessel, &c. in the penal sum of five thousand dollars." Can it be seriously said, or soberly listened to, that this sum of 5000 dollars was the estimated and liquidated damages, determined upon by the parties, in event of a failure in all or any of the conditions of the contract, by either of the parties, and demandable by the other! Suppose Fowler to have declined furnishing his 120 tons of merchandize; suppose him to have failed, paying one half the freight at Havana, or the other half here; nay, suppose him to have failed "procuring his own provisions and stores necessary for the voyage," would he have been liable to pay Thompson the sum of 5000 dollars?
    Our law has two provisions relating to this subject, which it will be sufficient to recite: "When the contract specifies that he who fails to execute it shall pay a certain sum, by way of damages, the other party can recover neither a larger nor a smaller sum." Civ. Cod. 268, art. 52. "The penal clause is the compensation for the damages which the contractor sustains by the non-execution of the principal obligation.” Ib. 284, art. 129.
    In the first place, the contract under consideration does not specify that he who fails to execute it, shall pay a certain sum, by way of damages; and, in the second, the penal clause has not been forfeited, because the principal obligation has been fulfilled. The principles regulating penal clauses in obligations, are fully and satisfactorily illustrated by Pothier, Tr. on ob. part 2, ch. 5, n. 337, et seq. and are all resolvable into considerations of equity: when excessive, it may be reduced and modified, n. 345; and, where the creditor voluntarily receives his debt, it is discharged, n. 358 et seq. In the present case, the defendant received the goods of Powder at Cadiz, and transported them to New-Orleans, stopping at Havana, all in conformity with what he undertook; and, after so transporting them, delivered them, part to Fowler, at Havana, and part to M'Nair, at New-Orleans, who received them, and paid the stipulated freight. In all the actions on charter-parties, to be found in the English or American books, it is believed that no case can be cited where the penal sum, always introduced has been considered as compensation or stipulated damage, or even demanded in such cases. Two are now before me, 10 East, 295, and 12 East, 381, where penal sums are recited, but not thought of being demanded ; a charter-party, being only a covenant or agreement, shall be construed according to the intention of the parties, and the custom of merchants. 4 Bac. ab. 626, tit. Merchant, &c. H.
    4. No damage was sustained by the cargo of the Oswego, from stoppingat Porto-Rico, or runnig into the latitude of that island.
    If any such damage had been sustained, the the affirmative was with the plaintiff, and should have been established fully and precisely. Nothing of the kind, however, was attempted in the court below; on the contrary, the testimony there given powerfully negatives any such presumption. In the first place, it is proven, by a crowd of skilful mariners, that in running from Cadiz to Havavana,it is not extraordinary to go as far tothe south as 15 degrees ofnorth latitude, and usual to run into 47 degrees-that the trade winds are fresher and more certain in the low latitudes, and that a cargo of a perishable nature is not more subject to damage or decay in a transikthrough the latitudes of 17 and 18 degrees, than of 20 and 21 degrees ofnorth lat itude. The reason is obvious-the prevalence and constancy of the trade winds in the low latitudes. Secondly, it is certain that the voy age from Cadiz to Havana was a fair one, performed in the usual time : this appears from the testimony of all the witnesses interrogated to that point. Thirdly, as to damage, no evidence of any appears, except in the testimony of two persons appointed by the custom-house to appraise such of the raisins as were brought here, with a view to the estimation of duties. One of these, Mellon, an intelligent and experienced grocer, says that it was impossible to say where the damage had been sustained, or from what circumstance it arose-that they appeared to be old, and were Originally of an inferior quality-that the boxes seemed to have passed through many hands. This circumstance of their being old and of inferior quality, is confirmed by that of their cost, which, at Cadiz, was one dollar and thirty cents per box ; yet, we find, that raisins of the same species, but fresh, in new boxes, and of good quality, cost, at a market more favorable than Cadiz, two dollars and fifty cents per box. The latter sold in this market for four dollars and fifty cents-those of Fowler’s, of which any particular account is given, were sold at Havana at from two dollars to two dollars and fifty cents. That this was a fair price, even for fair raisins, appears from the testimony of Lunt, who sold a cargo at Havana, shipped a month earlier from Cadiz, at from two to three dollars in Havana. Besides, some of the raisins sold by Fowler at Havana, and bought here by Duff, were sold in this market, before the arrival of the Oswego, at four dollars and seventy-five cents per box, and afterwards re-sold at five dollars and fifty cents, by Whitmore. In the absence then, of all proof, and even presumption, of damage from the conduct of the defendant or his agents, and with as strong evidence to the contrary as the nature of the inquiry in which it appears would admit, is it not fair to say, that the allegation of M'Nair or Fowler, however they may be associated or interwoven in the cause, is fanciful and unfounded.
    
      5. But, admitting every previous ground to be untenable, that damage accrued, was proven, and was proven to have resulted from the misconduct of the defendant, or his agents, yet the conduct of the plaintiff, in receiving the goods at Havana, and at New-Orleans,precludes him, however, on insisting on such damage.
    It appears from the testimony of Lake, Cooper,and Fowler himself, that on arriving at Havana, he spoke oflanding all the fruit and a certain portion of the wine: he did in effect land 939 boxes of raisins, of the 1567 on board ; and 100 kegs of figs, of 110 kegs. 270 boxes of the raisins thus landed were re-shipped, and, together with the remaining 638 boxes, were brought to New-Orleans. The 10 kegs of figs brought here were put in the boat to be landed at Havana, but being in bad order, were re-shipped. At Havana, Fowler remained twenty-one days, endeavoring to disposer of his cargo, and to obtain other-he, received the larger portion of the fruit there, and paid one half the stipulated freight, without a murmur of discontent, without a single complaint, or any charge of misconduct on the defendant or his agents. Fowler at Havana, too, was in contract for the purchase of a vessel, and asked, Thompson how much he would relinquish of the stipulated freight to be discharged there. This arrangement not being consummated, Fowler shipped , additional cargo, and obtained other on freight, of which he derived the profit, and proceeded to New-Orleans, the ultimate port: there he, or his consignee, received the remainder of the cargo, without complaining of damage, and paid the remainder of the freight. This plain statement of the facts in the case shews clearly that the demand for damages was an afterthought; the result of Fowler’s cunning and management, and M'Nair’s disappointment in his market, and in his agent. And how are the damages, as thus claimed, estimated? Two-thirds of the raisins, 939 out of 1567 boxes, and ten-elevenths of the figs, are delivered to Fowler at Havana, where he chooses to dispose of 669 boxes of raisins, and the figs, and then claims damages upon these raisins at the price they would have sold at in New-Orleans, when in bringing them to the latter market he would have been subject to the payment of duty, &c. and when he had no agency in preventing his doing so! The price at New-Orleans, moreover, is rated dollars, when it is in proof that the best and freshest raisins, and which cost nearly double, the sum his did at the place of exportation brought but 4 dollars 50 cents. I refrain from continuing a task that apparently would be endless; the pointing out the inconsistencies, and the detecting the fallacies which abound so profusely, and so jostle for precedence, in the petition and demands of the appellant. One authority is here introduced which was intended to have been offered in another place, it is from a sure source, however, and cannot at any time be deemed obtrusive. “When, (says Pothier contrat de charte-partie, n. 38.) the consignee receives the merchandize without complaint, he cannot afterwards alledge that they have been damaged."
    Upon the bills of exception taken by the defedant, but little, it is presumed, need be said. They relate to the protest, and accompanying documents, executed by Fowler at Porto-Rico, and the protest at New Orleans; and to the ad mission of Fowler as a witness in behalf of the plaintiff.
    1. As to the protest, the seal of a court, act ing under the law of nations, is evidence. Peake's Ev. 72-3, and note at page 78, as to the adtuissibility of public instruments of foreign countries, as evidence; and that the admission ot protests of bills of exchange, is a relaxation of the strict rules of evidence for the convenience of the mercantile world
    Protest at Porto-Rico, not under oath, there fore, ought not to be read. 1 Dall. 317.
    • 2. As to the admission of Fowler to be a witness, Enough has been already said as to Fowler's legal relation to the contract, which he was called upon to explain and enforce. A competent witness must not be interested, directly or. indirectly, in the cause. Civ. Code, 342, art. 248. But FLowler,if considered only as an agent, profited in proportion to the profits of the voyage, and would be entitled to his commissions on any amount recovered from the defendant. Besides, he is, as an agent, liable to M'Nair: and is he not, as the person stipulating with Thompson, and as a nominal plaintiff, at least in this suit, liable to Thompson in damages, should the present suit prove to have beep improperly and injuriously brought ? Above all, on the broad principle that no man can be permitted solemnly to contract with another to-day, in his own name, and to-morrow to come forward and dispense with his engagement, or en force it on the other side, by alledging that he acted for another, and is, therefore, neither responsible or beneficially interested-Fowler’s testimony ought to have been excluded.
    
      Harper, in reply.
    It is contended, this action cannot enure to M‘Nair, he not being a legal party to the contract, as we call it: not choosing to make so free use, as the defendant’s counsel, of the technical terms, peculiar to the common law, of deed and covenant,and to which alone the authority cited applies.
    The gentleman ought to havebeen aware, that although; as we admit, none can at common law be a party to the suit, on a sealed unnegotiable instrument, but the party to the deed, yet nothing has ever been more common, than for him, who is in the form of law, the party, to sue for the use and benefit of him, who is equitably entitled to the substantial benefit of the suit. In Virginia, such is the practice every day, in recovering bonds under seal, for the payment of money. But references of this kind, to the peculiar forms of the common law, are not pertinent to the point now in dispute. Maritime concerns and the dealings of commerce, are necessarily placed on a more liberal, if I may not say, looser principle of construction. The remoteness from each other, of the real parties in interest, the,unforeseen accidents attendant on the uncertainties of the ocean, and the resulting necessity,often times, for prompt and decisive proceedings, have, by the usage of trade, imparted to a distant agent authorities and powers which, in the discussion of a feudal land tenure, would be considered totally inadmissible, This liberality of construction is seen, under certain circumstances, even through the whole law of bottomry and respondentia bonds ; safes of ships in foreign ports, insurance, abandonment and salvage, redemption from capture. seamens' wages, freight, whether by charter party or otherwise.
    In this case, however, it is shewn, that fee * defendant knew of the agency of Fowler; and he, therefore, has no right to contest the interest of the principal. One thing is certain, that if he has committed the wrong complained of, he is bound to answer to somebody; and, in a case like this, his only concern must be, that he answer to a person who is so far the true party, that a judgment in his favor will bar any future judgment in favor of another, of which, here, there can be no doubt.
    M‘Nair, in this case,’is the party really injured ; and it is as consonant to reason as to law, that he should be the party redressed.
    The authority of Fowler to contract and to bind M'Nair is disputed; but by the very argument of the defendant's counsel, it is shewn that “ Fowler was authorized to sell the ship Moskow; and to invest the proceeds.in merchandize, to be shipped to West.” Now, what more is wanting to authorize this contract ? The merchandize is to be shipped. Can that be done without a ship? Does not a power to ship goods necessarily involve a power to pay freight? And what is a charter-party, but a contract of affreightment ? Had the goods arrived safe, and properly subject to freight, no matter by whose contract, would not the defendant have had his resort to the owners, or, which is still the same, to the property on board, of those owners ? If reciprocity of obligation be all that is required, to sustain this action, surely we regain fully secure.
    It is objected that Fowler had no power to bind his principal by a penal instrument. The answer is, that a charter-party, by whatever name you call it, penal or otherwise, is an instrument usual, and of daily practice, and in which agents are permitted to bind their principals&emdash;and that the present charter-party is one of ordinary character, and not distinguished by any transgression of the established mercantile practice.
    II. As to the demand of penalty and consequential damage, at the same time, itis unne-cessaryto argue. The demands, are as separate and distinct in the pleadings, as if they were advanced in two different suits : and the court will give or refuse, one or the other, or both, according to their sense of the law and the evidence.
    III. The stopping at Porto-Rico was by sti pulation. For this fact the principal reliance is on the testimony of Cooper, a witness to whom we except as incompetent, and to whom we did object, as unworthy of credit, in the court be~ low, when we had that opportunity of observing his prevarication of manner and unblushing predetermination to serve only one party, which, unfortunately for the justice of this cause, cannot well be had, from the written evidence before this court.
    We object here to parol evidence, toprove a change of voyage. Such testimony goes to very the very essence of the contract; for if the voyage itself be not an essential constituent of a charter-party, it is not easily conceived what of essence can any where be found in such ah instrument. . But, it is said, that such testimony merely operates an enlargement of the stipulations. It merely does, we confess; and it is, therefore, that we complain of it. The written contract of charter-party would soon go out of use, if stipulations, thus solemnly made, are so easily enlarged or restricted to any extent. I say to any extent&emdash;for, if a voyage to Havant can be changed to a voyage to Porto-Rico,as well may themaster of a vessel carry you, with captain Cook, on a voyage of disovery, round the globe, and then bring himself, to prove, (for such is the case now) that it was a mere enlargement. In this case, it is the party who testifies to this mere enlargement; for, in truth, Cooper, the master of the vessel, and successor of Davis, was himself bound to the ful-filment of the charter-party, and is introduced as a witness, to prove its fulfilment.
    But, admitting him a competent witness, the facts stated by him are so improbable in their nature, as not to be believed. The universally established usage of reducing charter-parties to writing; and the course intended by these par ties, apparent from an endorsement on the charter-party of much less importance, forbid the idea, of any verbal agreement, at least until it be shewn by less equivocal testimony, and that too disembarrassed of the various circumstances which, in this case, have a contradictory tendency.
    IV. The putting into Porto-Rico is said to be necessary. This, we are satisfied, is not established by the evidence. The defendant's counsel mistakes us, when he imagines that we meant to say that an intention to deviate was a deviation; but we do say, that adeliberate, premeditated intention to deviate, without the then existence of any necessity, followed up by actual deviation, is very strong evidence that the deviation was not of necessity, and that any necessity set up is either a false pretence, or a matter of voluntary contrivance.
    V. The stoppage at Porto-Rico works no forfeiture of the penal sum. On this subject the defendant’s Counsel has made a long argument, which it only requires, we think, two sentences of his own quotation to confute.
    The penal clause is the compensation which the creditor sustains by the non-execution of the principal obligation. Civ. Code 284, art. 129. So much for the penal part of this contract; now for the damages.
    When the contract specifies that he who fails to execute it, shall pay a certain sum by way of damages, the other party can recover neither a larger nor smaller sum. Civ. Code 268, art. 52.
    But says the defendant, this contract does not specify a certain sum by way of damages. And what I Would ask, ought to follow from that? Why simply that the party injured, instead of being confined to a specific sum for damages, may recover any sum, larger or smaller, which provecto be the true measure of actual damages. It does seemto us that the defendant might have made much better use of these quotations, by contending that we had specified a certain penalty, and thus endeavoring to confine us to the amount of that penalty.
    VI. No damage was sustained, &c. On this enough has been said, and as this is matter of fact, the court will satisfy themselves thereon, on a view of such of the evidence as they think proper to admit.
    VII. The plaintiff’s receiving the goods at Havana and New-Orleans, precludes him from insisting on damages.
    The court will remember that Havana was one of the ports of discharge mentioned in the charter-party, and the act of Fowler in attempting to sell a part of the cargo at that port ought not to prejudice the plaintiff, because it was only by the discharge made there that the damage was discovered to exist, and only by the attempt to sell, that the extent of damage could he understood. Had the whole cargo been sold at its then dull value, the defendant ought not lay so much emphasis on a transaction, which whether “cunning" or not cunning in law, must have been for the benefit of all concerned, and himself among the rest, in making the least of the loss incurred, by his misconduct.
    As to the plaintiff’s having received the balanced of the cargo, at New-Orleans, the fact is expressly denied. So far from this, a survey of the port wardens was had upon it, and by them it was sold.
    It is true the freight was paid to M'Lanahan by theplaintiff, but itwas paid under an express understanding, that the payment was in no measure to prejudice the suit about to be brought.
    The bill of exceptions to the protests offered in evidence, is not considered as very formidable, or if so, as very material; but that to Fowler’s testimony, merits a more careful notice.
    It would readily be admitted, without any citation from the books, that a witness interested directly or indirectly, cannot be competent. Fowler, it is said, is entitled as agent to his commissions, on whatever may be recovered from the defendant. It might as well be said, that if this were an action against an insurance office for a loss of the cargo, he would be entitled to his commissions on what was recovered; that if it were such an action, and the ship had foundered at the moment of leaving port, the master could have recovered the whole freight on all the goods for which the insurers proved liable. The truth is the voyage, such as it is, good,or bad, profitable or unprofitable, is now ever; and capt. Fowler can have no more concern with it. And further, it is established by his evidence that his affairs with M‘Nair are settled.
    Fowler’s pretended liability to Thompson in damage for the wrongful bringing of this suit, has no bearing whatever on his competency, A judgment in this suit would not go to decide the judgment in the suit for damages, and it will be time enough, as respects matters between him and Thompson,to dispute the truth of what he now says when the suit for damages shall have been brought-he will then be party and cease to be witness, and then hispresent testimony cannot avail either to his advantage or disadvantage.
    We have not troubled the court with a review of the numerous authorities cited on the part of the defendant; because, with all due deference to the intelligence, the ingenuity and the research of the counsel opposed, we feel compelled to say that we do not consider his authorities in general as applicable to the cause, and from those Which are defined applicable we apprehend no injury to our claim.
   Derbigny, J.

delivered the opinion of the court. The first ground of defence is a plea in abatement to the person of the plaintiff. The suit is brought in the name of Fowler, for the use of M‘Nair. Fowler, the nominal plaintiff, . is the person who was party to the contract of affreightment of the brig Oswego, which contract is the foundation of this suit. He now declares thathe acted as agent of M‘Nair; but he stipulated in his own name: the contract was his-not M'Nair's. The agent, (says the Curia Phil, 1, 4, 4,) is the person who contracts in the name of another, and not in his own. A person is deemed to have stipulated for him self, unless the contrary be expressed, or result from the nature of the agreement. Civ. Code, 264, art. 22. Thus, if M‘Nair should come forward, without the assistance of Fowler, he would be without any right. But Fowler’s declaration, that he sues forthe use ofM'Nair, amounts to a relinquishment and transfer of his own right in his favor, and is considered as sufficient to enable M'Nair toappear in this case as the real plaintiff.

The first object of this suit is, to recover the penalty stipulated in the charter-party; and the first inquiry must be has any breach of that contract been committed? It was stipulated that the vessel should proceed from Cadiz to New-Orleans, and on her way there should touch at the Havana. The breach complained of is, that he deviated from the strait course to touch at Porto-Rico, put into that port to land some passengers, and remained there three days. The fact of touching at Porto-Rico is proved ; an attempt was made to shew, by oral evidence, that this was done with the consent of the affreighter ; and a bill of exceptions was taken against the introduction of that testimony : but, whatever be our opinion concerning the admissibility of that evidence, we think it unnecessary to declare; because, whether it is admitted or not, the result on the merits of this case must be the same.

We will then consider it as proved, that the vessel of the defendant, without any leave from the affreighter, touched at Porto-Rico, and stayed there three days. To that fact must be confined the breach of the charter-party; because it is by no means equally clear that Porto-Rico is out of the way from Cadiz to Havana.

For this departure from one of the defendant’s obligations, to wit, that of not going from Cadiz to Havana, without stopping, the plaintiff demands . that the full ampunt of the penalty stipulated in the chafer-party be allowed to him, without &n|r reference to the quantspa of damages which he may have sustained. This pretention is thought to be supported by the following Article of our code: “ When the con-‘ tract specifies that he who fails to execute it shall pay a certain sum, by way of damages, the other party can recover neither a larger nor a smaller sum.” Civ. Code, 268, art, 52. And afterwards-“ the penal clause is the compensation fot the damages which the creditor sustains by the non-execution of the pnheipal obligation.” Civ. Code, 284, art. 129. To these quotations we will add-“ the penalty may be modified by the judge, when the principal obligation has been partly executed, except in case of a contrary agreement.” Id. 131. Taking the whole of that doctrine together^ it amounts to tlfis ^ where the parties appear to have themselves assessed the value of the dalH-ages, which they may respectively suffer, in consequence of the non-performance of the contract, those damages can neither be reduced nor increased, because the assessment is itself a part of the agreement. But this, if is evident,, must be confined, to the, case of the - absolute failure of performing the contract; for, when it has been performed in part, the proportion of damages is different, and no previous estimation can be supposed to have taken place. Thus, where a penal sum has been stipulated for the true performance of all the conditions inserted in a contract, that sum cannot be viewed as an assessment of damages, applicable to the failure of any of these conditions, whether of much or of little moment; to a slight deviation from one of the clauses, as well as to a direct violation of all. Such a construction would be monstrous. But what is to be done, when some part of the contract has been departed from? Assess the damages which that departure has caused to the other party; for it is, after all, the end in which must terminate all difficulties of this nature.

Have any damages been incurred by the plaintiff in this instance-and, if so, to what amount? The damage, if any, has happened to that part of the cargo, which consisted of raisins. There is no complaint that the rest received any injury. Upon this point, the sub stance of the evidence is as follows: Fowler shipped on board of the Oswego fifteen hundred and sixty-eight boxes of raisins, which he bought at Cadiz, at onedollar and thirty cents per box The price of good raisins, even at Malaga, the original place of exportation, was,about that time, two dollars and fifty cents per box. The plaintiff's raisins were not fresh when shipped; the boxes appeared to be old, and to have passed through several hands. They were shipped in rainy weather. The passage from Cadiz to Havana, including the stay at Porto-Rico, was of forty-three days, which is considered a fair passage. When the vessel arrived at Havana, Fowler landed nine hundred and thirty-nine boxes of raisins, sold six hundred and sixty-one there, and re-shipped two hundred and seventy, supposed to be of the same which had been taken out. The vessel was detained at Havana twenty-one days for Fowler’s business alone, during which time the weather was occasionally very warm. When the rest of the cargo arrived at New-Orleans, it was not possible to say how and where the raisins had been damaged.

This evidence requires no comment. Far from proving any thing in favor of the plaintiff, it holds out, as strongly probable, that the raisins were originally bad; and that, if they grew worse, it was owing to their getting wet in the act of shipping them at Cadiz, and to the detention of twenty-one days at Havana, rather than to the stoppage at Porto-Rico. Upon the whole, we are bound to say, that the plaintiff has not supported his action by sufficient evidence.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.  