
    *Lorent and Steinmetz ads. A. Kentring.
    The owner of goods on freight may authorize their delivery at an intermediate port; and if supervenient causes render the landing of the goods' necessary, and he accepts them at such places of landing, the carrier is entitled thereby to freight pro rata, 
      
    
    This was an action of assumpsit, tried at Charleston before Mr. Justice Smith, in January Term, 1816, to recover freight prorata, on a contract to carry-bales of cotton from Charleston to Amelia Island.
    The cotton was shipped on board the schooner Sally. The vessel departed on or about the 11th of December, 1813, and proceded as far as Beaufort, by inland navigation, when she was arrested in virtue of the embargo laid by the United States. By the terms of the Act of Congress laying the embargo, there was a compulsion to land the cargo within ten days, and the vessel prohibited from returning or prosecuting the voyage. In this dilemma, the owner applied to the defendants, and requested directions from them what to do. They required the cargo to be brought back, but were informed, that the law prevented this. The defendants then said, that the owner of the vessel might leave the cargo at Beaufort, with one Francis Anone, who received and stored the same. The owner sold the schooner before the embargo was raised, but never applied for freight till it was raised. When applied for, the defendants desired that the contract should be performed, and the cotton carried to Amelia Island, which he refused, saying he had sold his schooner. On this evidence the jury found a verdict for the plaintiiij and this was a motion to set aside that verdict, upon the following grounds :
    1. Because the verdict was contrary to law; as the carrier was bound, after the raising of the embargo, to proceed and carry the cargo to the port of destination, before he could entitle himself to freight.
    2. That the verdict was contray to evidence ; as the testimony showed there was an intention between the parties to waive the original contract, and the permisssion *to leave the cargo with Mr. Anone, was a mere aceommodation to the plaintiff.
    3. That the verdict was without evidence; as there -was no proof of an acceptance, from which the jury could infer a promise to pay rateable freight, or for a quantum meruit.
    
    4. That the verdict was against the weight of evidence ; as the testimony strongly supported the inference, that the defendants did not mean to waive their right of having the cotton carried to Amelia Island ; and the conduct of the carrier in not demanding his freight, till the raising of the embargo, corroborated such inference.
    
      
      
         Abbott on Shipping, Judge Story’s Ed. 272, 274, in note, 278, Art. 5, 294. Friends, Creighton, Edwards Adm. Rep. 246, Lex. Mer. Amer. 204. Molloy, b. 2, o. 4, s. 16.
      Yide the Racehorse, White, master, 3 Rob. Ad. Rep. 86. Also the Martha, Martin, master, do. 90, in note. And the Hoflhung, Rash, master, 6 do. 231, respecting freight, in the Court of Admiralty, in cases of capture, &e. R.
    
   The opinion of the Court was delivered by

Gantt, J.

It lias been admitted in. the argument of the case, that the owner of the goods on freight may authorize their delivery at an intermediate port; and that if supervenient causes render the landing of the goods necessary, and he accept them, at such place of lauding, that the carrier is entitled thereby to pro rata freight. All the grounds taken in this case are therefore resolvable into one, viz.: whether there was such an acceptance of the cotton, taken on freight by the defendants, at the Island of Beaufort, as entitles the plaintiff to this compensation? Under this view, it would seem, that a jury were alone the judges of the fact; and having by their verdict allowed pro rata freight to the plaintiff in this case, that verdict cannot and ought not to be disturbed, unless it clearly appears to have been found against the weight of testimony. That it is legal to allow pro rata freight, where there has been an acceptance of the goods by the owner, is not here made a question ; nor will it be contended, that if the goods were actually accepted, that the carrier was under any obligation, on the raising of the embargo, to proceed with them to the original port of destination. This is therefore a question, which can derive no advantage from the adduction of authorities ; unless indeed ^ *vva3' of precedent, to show what other juries have thought in dubious cases ; and even then could not authorize this Court to set aside a verdict on a question of fact, dependant, for its decision, on its own peculiar circumstances. I will therefore look at the facts, and endeavor to ascertain whether the weight of the testimony, in favor of the goods not having been accepted, greatly preponderated. But, before I do so, I will remark, that in every contract of this kind, it seems but equitable, (whatever decisions may have said to the contrary,) that in a game of hazard like the present, mutually undertaken, and with a view to the advantage of both parties, in ease of discomfiture, the loss of the enterprise ought not to devolve on the carrier alone. Indeed, on an emergency so dangerous as the transportation of goods, at the time of this undertaking, it can hardly be conceived, that it did not enter into the contemplation of the contracting parties, that if the voyage was defeated, still the carrier should be allowed something by way of retribution for his trouble. I am aware of the general doctrine, that to entitle the carrier to freight, the contract must be fulfilled on his part, by delivering the goods at the port of destination. But as every general rule is said to admit of an exception, so I think there may be cases of contracts of this nature, where supervenient causes would sanction a departure from the general law, and entitle the carrier to compensation, although the contemplated voyage and undertaking had been frustrated.

Id the present case, the owner of the goods on receiving information of the detention of the vessel by authority of the general government, seemed to have declined the wish, that the voyage should be prosecuted. Danger awaited the enterprise. It was then they should have insisted on the fulfilment of the contract, and directed that the carrier should, in despite of authority, endeavor to force his way to the desired port of destination. But this was promptly abandoned, and explicitly so, on their part. The answer they returned, was to bring the goods back. Did this look like a determination on *their part, that the voyage should go on ? And if, under this requisition of the defendants, the carrier had found it practicable to return, and acting under the authority and directions of the defendants, had sailed back to the port of Charleston, would he not in justice have been entitled to pro rata freight ? The carrier asks, what am I to do ? The vigilance of the general government, and its determination to prevent anything like illicit traffic, has arrested me in my course. Dangers await the enterprise on all sides. He does not say indeed, shall I endeavor to outwit them, and get there at all hazards ; but this may be implied from a liberal construction of the inquiry. The owners, un der existing circumstances, required the cargo to be brought back ; then the design of sending it to Amelia was unequivocally relinquished, and there is no colorable excuse for the pretence at this time, that their intention was, on the embargo being raised, to insist on the fulfilment of the contract by the carrier. On receiving the seeond communication from the carrier, that he was not permitted to return, and that the goods must of necessity be landed in ten days, he was informed by the owners, that he might leave the cargo at Beaufort, with one Francis Anone. Anone did receive and store the same, and gave to the carrier a receipt, that the goods had been received by him. Here, then, was an acceptance of the goods by Anone, as the agent of the owners, evidenced by a receipt taken.

But it is said, that this acceptance is to receive a qualified construction ; that it was to keep pace with the embargo, and end at the same time. That the prosecution of the voyage was still contemplated by the owners, when it could be done, and that as the carrier had intermediately disqualified himself from fulfilling the contract, by the sale of his schooner, he had thereby forfeited all right of demand for freight, as it was then out of his power to carry the contract into execution. Whenever goods are delivered and accepted, freight is due. Abbot, 282, Pinto v. Atwater. (1 Day’s Rep. 201. Cain. Ca. 21.)

*1 am decidedly of opinion, that the delivery to, and acceptance by Anone, under the order of the defendants, is and ought to be as effectual in law, as if the goods had been received and accepted by the owners themselves at Beaufort. It was for their interest, that they should be safely landed and stored there, and they gave directions accordingly. In every point of view, I think the demand for freight, pro rata, was, under the circumstances of the case, strictly legal and justifiable.

The vis major, so often spoken of during the present term, has countenanced those views of gain which were expected to be reaped by a voyage to Amelia Island, and the owners were no doubt pleased that the property had been safely stored with Mr. Anone, their agent at Beaufort, pursuant to their order. I am not able to discover how the permission to leave the cargo with Anone should be considered in the light of an accommodation to the plaintiff. Why the plaintiff should have delayed the exhibition of a demand for pro rata freight, I know not. It may be, that he thought it could not be recovered, as had been contended. But the law will excuse this delay, if founded on a misapprehension and ignorance of his right to pro rata freight. But why he did not, is matter of conjecture and doubt; that he is entitled to recover, is to my mind evident.

I am of opinion that the defendants should fail in their motion, and that the verdict should stand.

Colcocic and Johnson, JJ., concurred.

Cheves, J.,

dissented in the following words:

On the general question of law in this case, the counsel have not differed. According to the authorities, the general rule is, that the ship owner is entitled to no freight under the original contract, unless the goods be delivered at their ultimate destination ; or, unless he be prevented from delivering them, by the act of the owner of the goods. Luke v. Lyde, (2 Burr. 882;) Cook v. Jennings, (7 T. R. 379;) Mulloy v. Backer, (5 East, 321;) Liddard v. Loper, (10 East, 526.) But if the ship owner voluntarily deliver them *to the owner of the goods, and the latter voluntarily agree to accept, at an intermediate port or place, pro rata freight will be due. But so perfectly indivisible is the original contract considered, that it is not at all the foundation of the claim for pro rata freight. This is due on a new implied contract. Cook v. Jennings, Mulloy v. Backer, Liddard v. Loper. A necessary ground of this implied contract is the voluntary acceptance of the goods by the owner; for he may hold the ship owner to his original contract, if he please, however onerous the obligation may be; nor will an embargo dissolve the contract. Hadley v. Clarke, and others, (8 T. Rep. 265.)

It is said that the foundation of this new implied contract need not be a beneficial service; and that, though in the case before us, the freight from Beaufort to St. Mary’s would have been greater than from Charleston to St. Mary’s, (and I think this was undeniable,) the plaintiff was entitled to recover pro rata itineris. This appears to accord with the fact in the case of Luke v. Lyde, for it is there stated, that “the freight from Biddeford to Lisbon was higher than from Newfoundland to Lisbon.” I do not know, however, that this point is to be considered as settled. It was not expressly declared in Luke v. Lyde. The doctrine on this subject was then new. Lutwhytche v. Gray, and Luke v. Lyde, have laid the foundation of it. The latter case has been found to require explanation, on other points, and it may require it in this. In the case of Mulloy v. Backer, 5 East, 322, Lord Ellenborough admits this point hypothetically. He says, “there (in Luke v. Lyde, it seems an implied contract was raised, if not on the ground of beneficial service, at least, on the ground of labor performed by the plaintiff.” Mr. Justice Le Blanc, in the same case, (Id. 324,) says it was put on the footing that the plaintiff might recover upon an implied assumpsit for a benefit already conferred on the defendant, which, in that case, was implied from the acceptance of the goods by the defendant; and I do not know, that it has been *any where expressly said or determined, that, in the absence of a beneficial service, this contract will be implied. If not, the question would seem open for the operation of general principles. It is admitted, that labor performed, by an express or even an implied request, though not beneficial, will lay the foundation of an implied assumpsit; but there is no such request in the case we are considering; and I am not aware of any case, where an implied assumpsit can be raised without a request, expressed or implied, and without-the performance -of a beneficial service.

It would seem, that a request is the foundation of every implied assumpsit, and that when it is not express, it is implied from the same benefit or duty affecting the person wlio is supposed to promise. But the principle we are called upon to admit, seems to be no less than that a compensation for labor performed without request, shall be recovered by a person failing to perform a contract, for an injury done from the person injured. Suppose goods landed on a remote, uninhabited island, which happens to lie in the course of the voyage, from which it would be very expensive and difficult to remove them, still, on this principle, freight pro rata itineris would be due. This seems impossible, yet the case differs from that before us only in degree. In principle they are the same. The injury in the latter is only not so great.

Implied contracts are, “such as reason and justice dictate.” 3 Black. Com., 159.

It is presumed, “ that every man has engaged to perform what his duty, or justice required.” Id., 162.

On these principles, a contract, it would seem, cannot be raised in the case we are considering. It is impossible to convert the original contract into a request to perform the alleged labor. It would more justly be considered a request not to perform it. So true is this, that in the particular case before us, the defendants requested that their goods might be brought back to the port where they were laden. Nor can the acceptance by the owner of the goods, I think, be *viewed as an acknowledgment of any benefit received. I am aware that Mr. Justice Le Blanc says, in Mulloy v. Baker, (5 East, 324,) that in Luke v. Lyde, this benefit was implied from the acceptance by the owner of the goods. But it was evident he was only laboring to afford an explanation of the principle of Luke v. Lyde, as Lord Ellenborough had done before, in the same case, and did not intend to add to the authority of that case on this point. In the very next sentence, he inquires whether, in the case before him, a benefit had been enjoyed; and he puts the implied contract on the benefit received, where it ought always to rest. Now, if this be the principle, the question ought to be at an end ; for although, in Luke v. Lyde, as a matter of fact, this benefit was wrongly inferred, it would be paying more than idolatrous veneration to the authority of that ease to draw such an inference in all other cases against the fact. All that can be fairly implied from the acceptance of the goods, (which must always be by the consent of the ship owner, or he will be entitled to his full freight, unless he has forfeited his right to it by misconduct,) is the dissolution of the original contract. It may contribute to lay the foundation of the implied assumpsit, to pay pro rata freight, according to the benefit received, but cannot be considered as furnishing evidence of a benefit received, especially where it cannot be denied that an injury was done.

On the whole, I am not satisfied, that any freight can be recovered in this case, supposing the acceptance of the goods by the defendants at Beaufort to have been voluntary, and with a view to dissolve the original contract; because the delivery at Beaufort was not a benefit, but an injury to them. But if the law should be otherwise, I am quite satisfied, that the delivery at Beaufort was an act of necessity, and that the concurrence of the defendants, in this act of necessity, was an act of favor and indulgence to the owner of the vessel. That it was not intended to dissolve the original contract of affreightment, but merely to give their which was an act of absolute necessity on the part of the ship owner. *sanction to the mode in which the captain of the vessel should make a deposit of these goods while the embargo should subsist,

Simons, for the motion. Hunt, contra.

Nott, J., concurred with Cheyes, J.  