
    Wheeler vs. Curtis & Fisher.
    Where a charter party was entered into, whereby A. let the schooner to B. and C., for the transportation of stone, for the term of six months, the affreighters engaging to pay for the vessel at the rate of $300 per month, for six months, or in the same proportion for whatever time she might be so employed, and at the expiration of four months an end. was put to the contract by a stipulation between the owner of the vessel and one of the affreighters ; it was held, that such act of one of the affreighters was obligatory upon both; that a pro rata compensation was recoverable by the owner of the vessel under a special count upon the contract, alleging the employment of the vessel from the time stipulated in the contract until the day when it was by mutual consent dissolved, or that the compensation might be claimed under a general count of indebitatis assumpsit.
    
    
      The owner being bound, by the terms of the contract, to keep the vessel manned and in good repair during the time, &c. and to deduct for ^damages while detained for repairs, &c.; it was held, that there might have been a recovery under the count of indebitaiis assumpsit for freight due and payable for the transportation of the stone, and that the plaintiff was not bound to resort to a count of indebitatis assumpsit for the hire of the vessel, &c.
    Where in such case the defendants pleaded that the vessel was capable of carrying 150 tons of stone .at each trip, but that the plaintiff refused to carry a full freight or cargo, earned only 107 tons, and thus refused to let the defendants have the whole tonnage of the vessel; it was held, that a replication that the vessel carried at each trip as full a freight or cargo as was safe and prudent, and that the defendants had the enjoyment of the whole tonnage, as set forth in the declaration, was a good and perfect answer to the plea.
    Formerly, in assumpsit, a defendant might traverse not only the contract itself, but the consideration and the plaintiff’s performance of a condition precedent; but now the practice is obsolete, and where .the defence consists of matter of fact amounting to a denial of the allegation which the plaintiff must prove in support of his declaration, the general issue must be pleaded, or it will be good cause •of special demurrer that the plea amounts to the general issue.
    Whore a defendant pleads the general issue and also a special plea, to which the plaintiff replies and a demurrer is interposed to the replication, although the plaintiff may object to the plea if bad in substance, the defendant cannot overleap the general issue and object to the declaration—he cannot plead and demur to the same count.
    Error, from the superior court of the city of New-York. Wheeler sued Curtis and Fisher. In the first count of his declaration, the plaintiff set forth a charter party entered into between him and the defendants on the 28th day of April, 1829, wherein he was described as the owner of the schooner Eliza-Ann of the burthen of 107 tons or thereabouts, and whereby he granted, and to freight-let unto the defendants the whole tonnage of the Eliza-Ann, (except so much as might be necessary for the accommodation of the officers and crew, and the stowage of provisions, water and fuel,) for the purpose of transporting stone from the palisades on the Hudson river to the Delaware break-water, then building by the United States at the mouth of the Delaware Bay. The plaintiff covenanted that the vessel, during her employment, should, at his own proper costs and charges, be kept tight, staunch and strong, sufficiently manned, and provided, tackled and appareled, with all things necessary for such employment ; that she should be ready to proceed to load at the palisades on the 29th of April, from which time the wages of the vessel *were to commence ; and to continue in the business for the term of six months, provided the plaintiff kept her in order for the business. It was further agreed that the crew of the vessel should consist of a master, one mate and four good men, including the cook, (being six all told;) and that the plaintiff should pay all pilotage and wharfage, &c. On the part of the defendants, it was agreed to hire the vessel for the purpose aforesaid, to provide men to deliver the stone on board the vessel and to assist in discharging the same, and to pay to the plaintiff for the charter or freight of the vessel at the rate of $300 for every calendar month for the next six months ensuing the date of the charter party, or in the same proportion for whatever time the vessel might be so employed—the wages to be paid at the expiration of each month, commencing on the 29th of April, at sunrise. The instrument also contained a stipulation that if the vessel was detained by the plaintiff for repairs, supplies or hands to navigate her, a deduction should be made for demurrage to the amount of the charter party per day, for each and every day of such detention. The plaintiff averred that on the 29th April, the vessel, in good order, found, provided and manned ac-according to the terms of the agreement, proceeded to the palisades, received a cargo of stone, and transported the same to the Delaware break-water, and continued to be so employed until the 14th of September, 1829, when the charter party was by mutual agreement dissolved. The plaintiff also averred general performance, and concluded his count by claiming that there was due to him $772, as and for the freight of the vessel, according to terms of the' charter party, and alleged that the defendants had refused to pay. The second count of the declaration was in indebitatus assumpsit for certain freight before that time and then due, and payable from the defendants to the plaintiff for carriage and conveyance of stone, by the plaintiff, in certain ships and vessels, from divers ports and places to divers other ports and places, and there-delivered for the defendants, and at their special instance and request;, and for the care and attendance of the plaintiff and his servants in and about the loading, unloading and delivery of such stone. There were also counts for work and labor generally, on a *quantum meruit, for money lent, and on an insimul computassent. The defendants pleaded, 1. Non assumpsit; 2. That the vessel, while employed in the business of transporting stone, as alleged in the declaration, was capable of safely and prudently carrying a cargo of 150 tons of stone at each trip, besides accommodating the officers and crew, and affording the necessary stowage for provisions, Sec. but that the plaintiff refused to receive and carry a full freight of cargo, and carried only 107 tons and three quarters of a ton at each trip, and thus refused to let the defendants have the whole of the tonnage of the vessel, except what was necessary for the accommodation of the officers, &c.; 3. That the crew of the vessel, during the time that she was employed in the business, consisted of only five men, and they were intemperate and idle, and thus the vessel was not sufficiently manned ; 4. That the tackel and apparel of the vessel was in> bad order, and insufficient; 5. That the vessel was not ready, and did not proceed on her business the 29t.h April, according to the terms of the charter party ; and 6. Payment in full. The plaintiff replied to the second plea, that the vessel carried at each trip as full a freight or cargo as could safely and prudently be carried, and that the plaintiff gave to the defendants the use and enjoyment of the whole of the tonnage of the vessel as set forth in ike declaration, and took issue upon the four last pleas put in by the defendants. To the replication to the second plea, the defendants demurred, and assigned the cause for demurrer, that the plaintiff did not meet the allegation in the plea, but said that the defendants had the whole of the tonnage as set forth in the declaration : thus referring to a previous pleading, and attempting to give to a recital in the declaration the effect of an averment, thereby varying the issue from that intended by the plea. The plaintiff joined in demurrer ; and the court below, after argument, adjudged the replication to be bad, and also that the first count of the declaration as defective; and as to that count, gave judgment that the defendant go thereof without day, See. The cause was after-wards tried on the issues of fact, when the contract declared on was exhibited, and it was proved that the vessel of the plaintiff was employed in the business of carrying stone for the defendants from the 2nd May, 1829, *to the 14th September following. The plaintiff also produced and proved an instrument in writing, signed by himself and Fisher, one of the defendants, bearing date 15th September, 1829, by which it was agreed that the charter party between the plaintiff and the defendants should be considered as having expired on the day preceding the date of the instrument: to the admission of which, in evidence, the defendants objected, because it was not signed by both of the defendants; but the objection was overruled, and the evidence received. The defendants moved for a nonsuit, on the grounds, 1. That the plaintiff was not entitled to recover under the common counts ; 2. The evidence varied from a bill of particulars which had been delivered; and 3. That it did not support either count in the declaration ; which motion was granted, and the plaintiff was nonsuited. The plaintiff sued out a writ of error.
    
      S. P. Staples, for the plaintiff in error.
    The replication was good. The plaintiff had in his declaration averred general performance on his part, which of course included the allegation that the defendants had the benefit of the whole tonnage of the vessel; which allegation being denied by the second plea, the plaintiff had his election either to demur to the plea, or to take issue upon it by re-affirming the allegations in his declaration, Comyn’s Dig. tit. Pleader, C.; 1 Chitty’s Pl. 315; 4 Day’s R. 323; and in doing so, he correctly referred to the declaration. But if the replication is not good, the plea itself is bad ; and the defendants having committed the first error in pleading, the plaintiff was entitled to judgment. The plea is bad, for it sets up no new matter ; it is a mere denial of performance on the part of the plaintiff, i. e. that he had not given the defendants the benefit of the whole tonnage of the vessel; if the fact was so, it would reduce the plaintiff’s claim, but not bar his recovery. 1 Saund. 320, n. 4. 1 Chitty’s Pl. 355, 314. 6 Binney, 159. 7 Johns. R. 249.
    The first count of the declaration was good. True, it is stated that the charter party was dissolved, but such averment does not concede that such an agreement had never existed ; on the contrary, it is expressly set forth, and the only effect of *the agreement that it should cease, was to limit the plaintiff’s claim to a pro rata compensation, provided for in the charter party. But if the first count was bad in law, the demurrer of the defendants to the replication of the plaintiff, could mot reach it because the defendants had pleaded the general issue to the whole declaration, and of course to this count; and it is not allowable to a defendant both to take issue and demur to the same count, which would be the effect of allowing the defendants’ obÍAction to the plaintiff’s declaration to prevail in this case. 5 Bacon’s Abr, tit. Pleas & Pleadings, 444, 447, K. pl. 3. 3 Caines’ R. 263. And again; jf the demurrer to the replication be considered as a demurrer to the declaration, it can be viewed only as a general demurrer to the whole declaration ; and then, there being undeniably good counts, the plaintiff on this ground was entitled to judgment.
    Nor ought the plaintiff to have been non-suited. If the allegation in the declaration ; that the charter party was dissolved by the agreement of the parties, put an end to the contract, as was supposed by the court below, then services having been rendered by the plaintiff for the defendants, he was entitled to a quantum meruit. Besides the charter party having been ended by the agreement of the parties, the contract was executed; and on this ground, the plaintiff was entitled to recover under his general counts. 1 Comyn on Contracts, 223, 236. 13 East, 399. 2 Phil. Ev. 83, n.
    S. Stevens, for the defendants in error.
    The replication neither takes issue upon, traverses or avoids the facts alleged in the second plea, and therefore it is bad. The plea alleged that 150 tons of stone might safely have been carried and that the plaintiff refused to carry more than 107 tons, and in fact carried no more than that quantity; to which the plaintiff replied, that the vessel carried as full a freight as could safely be carried, but not admitting or denying the allegations that the vessel could carry 150 tons ; that the plaintiff refused to carry more than 107 tons, and did in fact carry no more than that quantity ; and thus, instead of answering the facts alleged, taking issue only upon the conclusion drawn by the plea from those facts, which cannot be done. Whether a ^conclusion is a legal deduction from the facts pleaded, can-
    not be decided by a jury, but must be determined by the court upon demurrer. 1 Chitty’s Pl, 587. 1 Saund. 23, n. 5. 2 id. 161, n. 11. The facts averred in the plea formed a good defence to the first count. The defendants were entitled to the iohole tonnage of the vessel; the plaintiff refusing to carry as much as the vessel was capable of carrying, the defendants had not the whole tonnage, and the plaintiff failed to support his first count, as much so as if he had wholly omitted to furnish the vessel. 13 Johns. R. 94, 96. 12 id. 165.
    The first count of the declaration is bad, because in it the plaintiff claims to recover upon a special agreement, which he admits has been dissolved, and consequently is not in existence. There can be no recovery upon such an agreement. 2 Johns. R. 340. 16 id. 354. The defendants have a right to object to the declaration, although the demurrer was interposed only to the replication. The rule is, that on demurrer, judgment shall be given against the party first in fault; and a defendant who has demurred to a replication is not precluded, when his plea is attacked, from objecting to the declaration, although he has pleaded the general issue. 8 Cowen, 178. 3 id. 96. 5 id. 407.
    The plaintiff was properly nonsuited ; and if so, the questions upon the demurrer cannot arise; for if the plaintiff has no cause of action, it is immaterial whether the decision upon the demurrer was right or wrong. He was properly nonsuited, because his whole claim rested upon an unrescinded special agreement, the performance of which on his part was a condition precedent; and having failed to perform, without showing any legal excuse, he cannot recover. 8 Cowen, 63. 2 Mass. R. 147. The agreement was with both defendants, and it was not competent for one of them to excuse or release the plaintiff from a full performance ; and consequently, as the vessel was kept in the employ of the defendants only a portion of the stipulated time, the plaintiff is not entitled to recover. If the plaintiff might sue at the end of every month for what might then be due to him, still the agreement remaining open, unrescinded and executory, he could not recover on the general counts, 13 Johns. R. 304; 18 id. 169, *455; but if he could recover on such counts, he has no appropriate count to which the evidence can be applied: the count under which he claims to recover is the second, which is for freight; it should have been for the use and hire of the vessel and hands. 6 Taunt. 322. 2 Barn. & Ald. 503. 21 Com. Law R. 95. 1 Cranch, 215.
   By the Court,

Nelson, J.

As to the demurrer. The question is not, nor could it be presented on the pleadings, whether the second plea is bad, as amounting to the general issue, because such an objection can be taken only by a special demurrer. 1 Chitty, 498. The performance of the agreement on the part of the plaintiff was a condition precedent to his right to recover, and is so conceded by the first count in the declaration; and this the plaintiff would have been compelled to establish against the general issue, id. 467, 498. The second plea is only a denial of such performance; and if the proper objection had been taken to it, I do not see how it could have been sustained. 19 Johns. R. 300. Mr. Chitty says, it was formerly usual to traverse in particular- the consideration of the contract, the contract itself, or the plaintiff’s performance of the condition precedent; but in assumpsit this practice is obsolete. In covenant it is no doubt otherwise, because the plea of non est factum puts in issue only the execution of the instrument.

As the plaintiff, however, has seen fit to reply to the plea, we must examine and see if the replication affords a sufficient answer to it. The first count in the declaration, which is special upon the charter party, sets forth, among other things, that the vessel was of the burthen of 107 tons, or thereabouts, and that the plaintiff had let to the defendants the whole tonnage, except so much as was necessary for the accommodation of the officers and hands. It is obvious that the number of tons was not intended to be set forth precisely or definitely, and that the clear meaning of the allegation is, that the defendants were, by the terms of the charter party, to have the use and benefit of the whole tonnage of the vessel, be it more or less. The averment of performance asserts this fact. The plea is correctly founded upon this idea, and therefore it * alleges that the vessel chartered was capable of safely and prudently carrying a cargo of 150 tons of stone each trip, besides accommodating officers and hands ; yet, that the plaintiff refused to carry over 107 tons, well knowing her ability, and did not permit the defendants to have the use and benefit of the whole tonnage of the vessel. The plaintiff replied, that the vessel did take and carry each trip as full a cargo of stone as she safely and prudently could; and that he did permit the defendants to have the use and enjoy the benefit of the whole tonnage, as set forth in the declaration. Now the intent and effect of the plea was to put in issue the fact that the defendants had the use and benefit of the whole tonnage of the vessel in the transportation of the stone, according to the tenor of the agreement. This the plaintiff was bound to prove, in support of the allegations in the first count; and it is the fact which his adversaries have selected to deny. It seems to me, therefore, that the replication is not only proper, but the only one that could be framed, to meet the substantial point of the plea, and sustain the declaration. It is said the plaintiff ought to have taken issue upon the allegation in the plea, that the vessel could have safely carried at each trip 150 tons of stone; but it is clear the finding of that fact for him would not have sustained his averment in the declaration. By that he was bound to show that the defendants had the use of the whole tonnage of the vessel, be it more or less—showing that she could, or could not safely carry 150 tons, would not support the allegation, and a replication presenting such an issue would have been a departure, and therefore defective. 1 Chitty, 618, 19. The fact that she could carry 150 tons, would be proper evidence on the trial to support the averment in the plea, that the defendants had not the benefit of the whole tonnage. It is also said that the replication takes issue upon the conclusion drawn by the plea from the facts pleaded. This, I think, is a mistake. What is here called a conclusion, in my judgment, embraces the main fact in the plea, and without which it would have presented a totally immaterial issue. The error of the counsel, in the. view taken of the pleadings, I apprehend, lies in considering what is set forth by way of inducement only to the material allegation in the plea as the *material allegation itself. The plea traversed or denied an averment of performance by the plaintiff, in a specified instance, and in the replication the plaintiff was bound to adhere to the allegation thus denied, and fortify and support it. This he has fully done. 1 Chitty, 596, 619. The above view also answers the causes of special demurrer set forth, but which were not much relied upon in the argument.

Whether the first count in the declaration is defective or not, is a question that cannot be raised upon this demurrer. The defendants have pleaded the general issue to the whole declaration, and to permit them on a demurrer to the replication to go back, and object to the declaration, would be allowing the defendants to do indirectly what they could not do directly, to wit, plead and demur to the same count. 5 Bacon’s Pleas & Pl. 457, N. They cannot override the general issue and have the benefit of a demurrer in this way under the rule that a party may go back, and take advantage of the first fault in pleading, for the operation and effect would be the same as if a general demurrer had been put in to the defective pleading. I am of opinion, therefore," that the plaintiff was entitled to judgment on the demurrer, and that for this cause the judgment below ought to be reversed.

Another question presented in this case is, whether the plaintiff was rightfully nonsuited in the court below. A recovery was claimed, either under the special or general counts, upon the facts disclosed; and the grounds taken, and upon which the nonsuit was granted were, 1. That the evidence did not support any count in the declaration; and 2. That there was a variance between the evidence or cause of action proved and the bill of particulars. There was another ground urged, but it is included in the first.

First. As to the special count. It is said the plaintiff did not prove performance on his part, which was a condition precedent to his right to recover; and especially as to the time of the service of the vessel and hands. By the charter party it was stipulated that the vessel should commence and continue in the business for the term of six months, provided said party of the first part kept her in order for said businessand again, the defendants stipulated to pay the plaintiff for *freight of the vessel and wages of hands, “ at the rate of $300 for every calendar month for the next six months ensuing, or in the same proportion, for whatever time the said vessel may be employed.” On the 15th September, 1829, a stipulation was signed by the plaintiff and Fisher, one of the 'defendants, agreeing that the charter party should be deemed to have expired on the 14th of that month. It will be seen that the objection upon which the court nonsuited the plaintiff was very general ; and the only specification in the points, so far as related to the first count, is, that the plaintiff did not continue the vessel and hands in the employment of the defendants the six calendar months, the counsel for the defendants insisting that one of these defendants was not competent to put an end to the charter party. We shall not therefore undertake to ascertain or examine any other ground relied on, to sustain the nonsuit. This point, we think, has been adjudged in this court against the defendants, and in accordance with well settled principles.

In Fitch & Buck v. Forman, 14 Johns. R. 172, the plaintiffs declared upon a special agreement, by which the defendant had engaged to open a mine, and sink a shaft, See. before the first December, then next, or in case of default, to pay the plaintiff $2500. The breach -assigned was, that the defendant had not explored the mine within the time. The defendant set up a release from one of the plaintiffs of any liability by reason of his default, and an extension of the time. The objection was there taken that the instrument was signed by one of the parties to the agreement, and could not bind his co-contractors. Thompson, Ch. J., said, “The instrument having been signed by only one of the plaintiffs, cannot alter its legal operation. They had a joint personal interest, and the release or modification by one would bind the others.” The chief justice refers to 3 Johns. R. 70, where the general principle is recognized, that when two have a joint personal interest, the release of one bars the other. See also 6 Co. 25; 14 Johns. R. 300, 387; 13 id. 286. Now if one of the defendants was competent to discharge the plaintiff from the further performance of his agreement, (of which I cannot doubt,) then the above objection must fail; for after the discharge, the case stands upon the same footing, in judgment of *law, as if the charter party had been originally limited to the 14-th September; for it contemplates a shorter period of service than . the six months, and expressly provides for a pro rata payment; and so far as time is involved in the question, the performance would be complete. The EHintiff would accordingly be entitled to recover for the time his vessel and ands were.thus employed, by the very terms of the agreement, “at the rate of three hundred dollars for every calendar month,” not for the next six months ensuing, but “ in the same proportion for whatever time the said vessel may be (was) so employed.” Upon this view of the case the first count in the declaration is framed. Having declared for the whole time, that is, to the 14th September, I admit the plaintiff must show a performance for that time, before he can recover even for one month, though the payments were to be made monthly, according to the case of Cunningham and another v. Morrell, 10 Johns. Rep. 203.

Second. As to the general counts. The second count is the only one that can be relied on, or which is at all adapted to the case : it is for certain freight before that time due, and payable to the plaintiff from the defendants, for the carriage and conveyance of a quantity of stone, on board of his vessel, &c. at the special instance of the defendants, &c., and for care and attendance of the plaintiff and his servants in and about that business.

1. It is said that the special agreement is still open, unrescinded and executory, and that therefore the plaintiff cannot recover under this count; and if the fact is as supposed, there can be no doubt of the soundness of the conclusion. The cases on this point are numerous and uniform, and it is unnecessary to refer to them. But is the contract executory ? If the conclusion to which we have arrived in the consideration of the first count be correct, then, so far as the plaintiff is concerned, it is executed; and if so, indebitatus assumpsit will lie to recover the stipulated compensation upon a count properly framed. The authorities on this point are abundant and direct. Bull. N. P. 139. 1 Bos, & Pul. 355, N. S. 1 Selw. N. P. 85, and n. 10 Mass. R. 294. 1 Chitty’s Pl. 339. 1 Holt’s N. P. *236. 4 Wendell’s R. 289. 7 Cranch’s R. 299. 4 Cowen, 564. The general rule, however, must be taken with the qualification stated by Ch. J. Gibbs in Robson v. Thomas, 1 Holt’s N. P. 299, that there is no provision in the special agreement which would be violated by the recovery, as though the work might be done, yet the stipulated compensation might not be due ; and as said by Sir J. Mansfield, 1 Bos. & Pul. 355, N. S., the case must be such that supposing the special agreement out of the question, a recovery might be had under the general count, as for building a house according to a special agreement. Bull. N. P. 139. 1 Selw. N. P. 56, n., per Dennison, J. Within the above rule, a party who has executed the agreement on his part, may, at his election, declare on the special agreement or rely on the general counts—and so is the law.

2. It is said that conceding the plaintiff is entitled to recover under a general count, the one in question is not appropriate, nor can the evidence be applied to it. To maintain this position, the counsel fdr the defendants contend that the compensation of $300 per month, was a consideration for the hire and use of the vessel and hands, and not for freight; and many authorities were referred to for the purpose of showing that the defendants were, for the time being, owners, and had the possession of the vessel, and that the master and hands were their servants—plausibly enough arguing from all this, that it would be a misnomer and absurd to call the moneys to be paid a compensation for freight of the vessel. I have looked attentively into all the cases cited, and without going into them, am entirely satisfied that the position of the counsel cannot be maintained, and that the clear and obvious intent and meaning of the charter party in this case, leaves the exclusive possession and control of the vessel during the service in the plaintiff, the owner. This conclusion is sustained by all the American cases, especially those in this court, and by the best considered cases in England. Clarkson v. Edes, 4 Cowen’s R. 470, and cases there cited. Christie v. Lewis, 6 Com. Law R. 175. The case of Newbury v. Colvin, 20 Com. Law R. 96, does not conflict, as supposed by the counsel, with that of * Christie v. Lewis, but is clearly distinguishable from it, and from this case. By the terms of the agreement, the plaintiff did grant and to freight let” to the defendants “ the whole tonnage of the said vessel,” reserving so much as would be necessary for the accommodation of the officers and hands. The vessel during the employment was to be kept tight, staunch and strong, and sufficiently manned, &c. at the costs and charges of the plaintiff. The defendants were to pay “/or the charter or freight of the said vessel, for the wages aforesaid, at the rate of $300 for every calendar month ; and if the “ vessel shall be detained by the party of the first part, (the plaintiff,) his factors or agents, for supplies, or men,” then there was to be a deduction for demurrage. This clause clearly shows that the vessel was to remain in the possession of the plaintiff, and subject to his control. If the vessel was in the possession and under the control of the defendants, and the master and hands were their servants, it is difficult to perceive upon what ground the plaintiff could be held responsible for either the omission to carry a sufficient amount of freight per trip, or for any unfaithfulness of the men. The whole defence is predicated upon such responsibility, and I have no doubt, rightfully. Upon the whole, from the best consideration I have been able to give to the cause, I cannot resist the conclusion that the plaintiff made out a prima facie right to recover under either of the counts above examined, notwithstanding the objections that have been raised. The exception growing out of the bill of particulars was not urged on the argument, nor can I discover any force in it.

Judgment reversed, with single costs, and venire de novo to issue.  