Niagara Insurance v. Searle — 2 N.Y. Super. Ct. 22

Majority

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The Niagara Insurance Company, versus John Searle, George Barclay, George Chance, Francis Baretto and Robert Bayard.

Headnote

The plaintiffs loaned to the defendant Searle, $15,000 upon goods on board the brig Ocean, whereof S. was master, and received from the defendants a respondentia bond as security for that loan. The vessel was bound from New-York to Calcutta, and from thence back to New-York, with liberty to touch at Madeira on the outward passage. By the first condition of the bond the vessel was to proceed with all convenient speed on her voyage, which was to terminate -within 18 months ; II. She was to have on board during the whole voyage the stipulated amount of property ; III. The voyage was to be performed without deviation ; and by a further condition the defendants were to pay the g 15,000 on the return of the vessel, or at the expiration of 18 months from the date of the bond, whichsoever should first happen.

The time stipulated in the bond being expired and the vessel not having returned, the plaintiffs brought an action of debt on the bond, to which the defendants (with the exception of Searle, who was not arrested,) pleaded that after the brig -sailed on her voyage, and before she arrived at Calcutta, the plaintiffs, in consideration of an additional premium of $300, agreed with the defendants, as

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sureties for Searle, that the vessel should have liberty to proceed from Madeira to the Canaries, and a port or ports in South America, India or elsewhere, and from thence to a port in the United States. That the vessel proceeded from Madeira on the voyage last mentioned, was then prosecuting it with all reasonable dispatch, and had not returned to the United States at the time the action was commenced.

Upon demurrer to these pleas it was held that the new agreement made with the sureties, did not vary or alter the terms of the original contract any further than to preclude the plaintiffs from taking any advantage of a deviation from the voyage prescribed in the condition of the bond. It authorised a change in the course of the voyage hut did not extend the time for its performance, and the plaintiSs had judgment on the demurrer.

As the new contract was not under seal, quere, whether the terms of the bond could be varied by the parol agreement 1 And if so, whether the pleas themselves are good ?—

This was an action of debt upon a respondentia bond, bearing date the 25th day of August, 1826. The defendant Searle was returned by the sheriff “ not found,” but the other defendants appeared and craved oyer of the bond and its condition. The bond was in the ordinary form for the payment of money ; but from the recitals in the condition it appeared that the plaintiffs had lent and advanced to John Searle, the sum of $15,000, upon goods, wares, merchandise and specie, to that amount laden on account of Searle, on board the brig Ocean of New-York, whereof he was master : which goods, waves and specie, and the proceeds and returns thereof, were hypothecated and mortgaged to the plaintiffs, for the faithful performance of the condition of the bond. That the said vessel was bound on a voyage “ from New “ York to Calcutta, and from thence back to New-York, with “ liberty to touch and trade at Madeira, on the outward passage.” That the plaintiffs were “ to stand and hear the risks against “ which the said company usually insure by their cargo-policies, “ on the said sum, so lent and advanced on the said goods,” “ dur- “ ing the said voyage,” provided the same did not “ exceed the “ term of eighteen calendar months, to be computed from the day of the date” of the bond. The condition of the bond provided, that the vessel should proceed with all convenient speed on her voyage and return to New-York, with the amount in value above ‘Stipulated on board: “ to end her voyage at New-York, by or be-

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“ fore the end or expiration of eighteen months, from the date” of the bond ; “ and that without deviation, the dangers and casual- “ ties of the seas excepted.” And if the defendants, or either of them, should pay to the plaintiffs, the above sum of $15,000, immediately upon the arrival of said vessel at New-York, or at the expiration of eighteen months from the date of the bond, whichever event should first happen, together with the sum of $2550, the stipulated marine interest and premium on said loan : or if the said defendants, or either of them, should immediately after the return and arrival of said vessel at New-York, provided such return should happen within eighteen months from the date of the bond, give security, satisfactory to the plaintiffs, to pay the said sums within three months from the time of such return, with lawful interest thereon from the time of such return, and should pay the same at the expiration of said "three months : or if in the said voyage and before the end of eighteen months, a total loss of the goods and specie, by the risks against which the company usually insure by their cargo policies, should unavoidably happen, and the defendants should abandon to the plaintiffs said goods and specie, and their proceeds, &c. ; then the obligation was to be void.

The defendants who appeared were, in fact, mere sureties for Searle, and they interposed two special pleas in bar of the action. In the first they set forth, that the vessel sailed upon her contemplated voyage on the 6th day of August, 1826, having on board the goods and specie specified in the condition of the bond. That afterwards, on the twentieth day of February, 1827, before the arrival of the vessel at Calcutta, in consideration of an additional premium of two per cent on said sum of $15,000, paid by the defendants to the plaintiffs, the plaintiffs agreed with the said Francis Barretto, Jr., George Barclay, George Chance, and Robert Bayard, “ as sureties of the said John Searle,” that the vessel “ should have liberty to proceed from Madeira to the Canaries, and a port or ports in South America, India, or elsewhere, and at and from thence to a port in the United States.” That the said vessel having arrived at Madeira, pursuant to the liberty given, did, afterwards, to wit, on the 20th day of February, 1827, “ proceed from Madeira, in and upon the said last mentioned voyage, to the Canaries, and a port or

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ports in South America, India, or elsewhere, and at and from thence to the United States; and although the said brig from thence hitherto hath been, and yet is, prosecuting the said intended voyage last mentioned, with all reasonable diligence and despatch, according to the true intent of the liberty given as aforesaid, yet the said brig hath not as yet returned to, or arrived at a port in the United States.”

The second plea alleged, that the said sum of $15,000 -was loaned and advanced by the plaintiffs to Searle, at his request and for his sole benefit, upon the terms and for the purposes mentioned in the condition of the bond, and that the same was executed by the other defendants as mere sureties for Searle, without interest or benefit to themselves, and for his accommodation, whereof the plaintiffs had notice at the time of making the loan. That the vessel immediately thereafter proceeded on the voyage specified in the condition of the bond, with the goods and specie on board, having liberty to touch at Madeira on her outward passage. That afterwards and before the arrival of the vessel at Calcutta, the said Searle advised the defendants, Barclay, Chance, Bayard, and Barretto, of his “ intention to deviate from the voyage,” in the condition of the bond mentioned, “ by touching at the Canaries, and some other port or ports after leaving Madeirawhereof the plaintiffs had notice on the 20th day of February, 1827. That the plaintiffs, in consideration of an additional premium of two per cent on said sum of $15,000, paid to them by the sureties, agreed with them that said brig should have liberty to proceed from Madeira to the Canaries, and the other ports mentioned in the first plea. That the said 'brig, after touching at Madeira, on the day and year last aforesaid, to wit, at the city and in the county aforesaid, set sail and departed on the said last mentioned voyage, from thence to the Canaries, to a port or ports in South America, &c.: and that although the said vessel from thence, had hitherto constantly pursued and prosecuted said last mentioned voyage, with all reasonable diligence, yet she had not yet arrived at a port in the United States.

To these pleas there were separate general demurrers, and joinders therein. The counsel for the plaintiffs contended,

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I. That by the terms of the respondentia bond mentioned in the pleadings, the plaintiffs had a right, in the absence of loss by any of the perils insured against, to sue for the amount of the bond at the expiration of eighteen months from its date, without waiting for the termination of the voyage.

II. That the alleged agreement of the 20th of February, stated in the pleas of the defendants, had at most no other operation or effect, than to authorise a deviation from the iter of the voyage described in the respondentia bond, and did not enlarge the time limited for its performance, and the payment of the money specified in the bond.

III. That the pleas were defective, there being no averment' that the vessel had not deviated previously to the 20th of February, nor that she had on board the stipulated amount of goods at any time subsequent to her sailing from New-York.

IV. The pleas state the supposed enlargement of the time by implication, and not by positive averments, and seek by an alleged agreement not averred to be under seal, or even in writing, to vary and alter the terms of a sealed instrument.

Mr. F. Griffin, for the plaintiffs.

As the contract originally stood, there can be no doubt as to the plaintiffs’ right of action. The money was repayable absolutely at the expiration of eighteen months from the date of the bond, unless the vessel was lost by some of the perils insured against. The stipulated time having expired, and no loss having occurred, the question is, how are the rights of the plaintiffs affected by the contract made in February, 1827 ?

Originally, the designation of the voyage was distinct: the vessel was to proceed from Nevv-York to Calcutta, with liberty to touch and trade at Madeira on her outward passage. Under this agreement, if there had been any deviation from the voyage, the

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bond would instantly have become absolute, and it could not have been avoided by a subsequent loss.

The time, also, in the first contract, was distinct, and independent of the designation of the voyage. It was contemplated that the voyage might last longer than the eighteen months, else it would not have been limited. The ending of the voyage, if it exceeded eighteen months, had nothing to do with the payment of the money, for that became due absolutely at the expiration of that period.

The second contract altered one of these' independent properties or conditions, without touching the other; and the proposition cannot be maintained, that a change in the route of the voyage operates as a matter of course to enlarge the time.

The fair mode of construing the amendment, is by ingrafting it on the original contract f and in this form, how would the whole agreement stand 1 The marine interest would be increased from two thousand five hundred to twenty-eight hundred dollars. The vessel, instead of being confined to the direct route to Calcutta, would have leave to go to the Canaries, to South America, or elsewhere ; but is the limitation as to time affected Í The course of the vessel is left free, and she may traverse what ocean she pleases, provided she do not exceed the limited period; but if the time be overleapt, the bond becomes absolute.

In this particular, then, the contract stands, after the alteration, as it did before; it remains an insurance for eighteen months on the brig Ocean, and when that time expired, the money became due, and the insurance ceased, wherever the vessel might be.

II. What was the object of the defendants in making the second contract 1 Undoubtedly it was to obtain permission for Captain Searle to deviate from his intended route, without endangering their rights under the original agreement. By the terms of that contract, he was forbidden to deviate; for every deviation increases the risk. He desired, however, to change the iter of his voyage, and according to the averments in the second special plea, communicated his wishes and intentions to the present defendants. The plaintiffs, then, for a new consideration, and an

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additional premium, consented that the iter of the voyage should be changed, but not that the time for its performance should be enlarged. This is a reasonable construction to be put upon the whole contract, and must coincide with the views of all the parties at the time the second agreement was made.

The additional fact set forth in the second special plea, that these defendants were sureties, can make no difference in the construction. True it is, sureties are considered in some measure as entitled to the favour of courts, and will not be held responsible beyond the strict scope of their engagements. [Ludlow v. Simond, 2 Caines’ Cases in Error, 1.] But in ascertaining what their engagements are, the rules of construction as to them, differ in no respect from those which apply to their principals.

III. The pleas themselves are defective. Both pleas aver, that the brig set sail from New-York on the 26th of August, 1826, on the voyage mentioned in the original bond. Both pleas take her up again at Madeira, and aver, that since that time, she has been engaged in pursuing the substituted voyage from that place; but neither of them contains any positive averment that the vessel had not deviated on her passage from New-York to Madeira.

With regard to the averment that the vessel, in the course of her voyage, continued to have on board the stipulated amount of goods, the pleas are still more defective. All that is said upon this subject is, that the vessel set sail from New-York with the goods on board; but whether she afterwards continued to have them on hoard, does not appear.

If, therefore, these averments, or either of them, are material, the pleas are defective. Are they material 1 The instrument is a bond, absolute in the penal sum of thirty thousand dollars. The penalty is to become void on certain conditions. One of these is, that the vessel shall pursue a certain prescribed voyage, without deviation. If she had deviated, that instant the penalty would have become absolute, whether the eighteen months had expired or not. [Western v. Wilding, Skinner’s Rep. 59, 152. Emerigon on Bot. chap. 8, sec. 4.]

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Another condition is, that the vessel should continue to have on board a certain stipulated amount of goods. If this condition was at any time violated, the penalty would on the same principle become absolute.

The plaintiffs have declared on the penal part of the bond, and by the declaration it appears that the defendants are liable in the sum of thirty thousand dollars. The plea in order to avoid this, should aver a compliance with the conditions of the bond. [Com. Dig. tit. Plead. E. 25. 2. v. 13.—2. w. 33.—Langwell vs. Palmer, 1 Sid. Rep. 87.]

Two of these conditions are, that the vessel should not deviate, arid that she should always have the stipulated amount of goods on board. A compliance with these two conditions, should be positively averred.—[ Williams vs. Stedman, Skin. Rep. 345. Holt's Rep. 126.—1. Sid. Rep. 87.] But as the defendants have not in either of their pleas alleged such compliance, the pleas are bad.

IV. The supposed enlargement of time is pleaded by implication and not by positive averment. The time originally limited was eighteen months, and this period had expired before the com? mencement of the suit. The defendants to avoid this, wished to shew by their pleas, that the time had been enlarged. But this they have not done by any express averment. All that is said on the subject is, that the voyage was enlarged, and that the vessel is now engaged in pursuing the substituted voyage. From this, the inference is drawn, that the time has been enlarged and has not expired. This, manner of pleading is decidedly bad, as will appear from the cases before cited.

V. The new agreement is not avered to be under seal, neleven alleged to be in writing. The original contract was under seal, .and it is settled beyond all doubt, by repeated decisions, that a sealed instrument can be altered only by an instrument of the same nature. [Thompson vs. Brown, 1. Moore, 358.—7. Taunt. 656. 1. East. 619. 8. Taunt. 31. Tellers vs. Bickford.—3. T. R. 590. Littler vs. Holland, 3. T. R. 590 and 592. (n)—Farley vs. Thompson, 15 Mass. R. 25 .]

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The court will not infer that the contract was in writing, for when the plea is ambiguous the construction is to be against it, [1. Chit. Plead. 521. 2.] And where an agre ementis not alleged in a plea to be in writing, the court will intend that it was verbal. [ Cose vs. Barber, Sir T. Ray, Rep. 450.] In a declaration the averment is not necessary, but in a plea it is. [1. Chit. Plead. 303.]

But whether this agreement was in writing or not, is not very material, for it certainly was not tinder seal. The maxim of legal construction is inflexible: codem modo quo quid constitutur cqdem modo dissolvitur.

Mr. Hugh Maxwell and Mr. Slosson for the defendants,

presented the following points:—

I. The undertaking of the sureties was collateral to that of • their principal, and their liability arose only on the default of the principal. In consequence of this relation, the sureties are only liable on the strict letter of their contract, and any act of the' obligees, discharging them from this collateral undertaking, is a valid defence.

II. The agreement in question, was such an act, and discharged the sureties entirely from the collateral undertaking in regard to the original voyage, and all penalties consequent on its abandonment.

III. The new voyage was a different voyage, and an entire substitution in the place of the original one, and is not qualified by the limitation in the original voyage to "eighteen months, or by the stipulation as to the cargo on board.

IV. The new contract cannot be incorporated with the original condition ; Searle, the principal, being no party to it, and it also feeing a distinct agreement.

. V. The defence is good at law ; and as the agreement is a license merely, it can only be available by way of defence to the action on the bond.

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VI. In any event, there was an enlargement of the time for performing the voyage until a reasonable period had elapsed for the performance of the substituted voyage.

The technical objections to the defendants’ pleas, arising from the alleged want of proper averments of the facts, relied upon as a defence, may be easily disposed of. It is perfectly immaterial in relation to the questions now before the court, whether the stipulated amount of goods was on board the vessel or not; for there is no controversy between the parties in relation to that subject. If the defendants have stipulated to do or perform any specific thing, the law will presume that they have complied with all the requirements of their contract until the contrary is shewn. Whether they have or have not performed all the stipulations contained in the condition of this bond is not a subject of present inquiry ; and the attention of the court cannot be drawn from the main questions to those which are merely collateral. The averments are all of them sufficiently specific and precise, and it is expressly alleged in the pleas, that the vessel sailed from New-York on the 26th day of August, 1825, “ having on board the goods, wares, merchandise and specie in the condition of the bond mentioned.” If they were on board when the vessel sailed, it is to be presumed that they continued there, until the contrary is made to appear. They must have remained on board until the arrival of the vessel at Madeira, unless thrown into the sea, for it is not pretended that there was any deviation before the vessel arrived at that island.

It was not necessary to allege that the vessel had not deviated previously to the 20th of February, because such is the presumption, until the contrary is shewn. If she had deviated before that time, the plaintiffs contend that such deviation would have caused a forfeiture of the bond; and if this be so, it is for them to shew a deviation, for the court will not infer that the defendants have violated their contract.

But if these objections were tenable and well taken, they are the subjects of special demurrer only, and cannot avail on a gene

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ral demurrer. They may therefore be dismissed without further remark.

I. The first subject of inquiry before the court, is whether the defendants can set up the new agreement by way of defence to this action; whether they can allege and prove, by parol, that a new voyage was substituted in the place of the original voyage ; for if they can, then the plaintiffs cannot under any aspect of their case, maintain this action until the substituted voyage has been performed.

This inquiry leads to a distinct branch of the law; to the obligations of principal and surety ; for it will be observed that the original contract still remains in full force, as to Searle the principal in the bond. The contract on which the defendants rely, is that disclosed more particularly, by their second special plea; a separate contract between the obligees and the sureties, to which the principal is not a party. This defence is not set up by the principal but by the sureties, and they plead that the present action ought not to be maintained against them.

The obligation of a surety is collateral merely, and he is never liable except upon the default of his principal. Before you can resort to an action against the surety, you must shew that there has been a violation of the contract on the part of the principal. The obligations of the two are not the same ;• the surety undertakes to do, to pay or perform upon the default of the principal, and his contract is conditional. It must be shewn that the condition has been violated before the surety is liable, and that is a prerequisite in the plaintiff’s proof, before he will be entitled to recover. [Lu dlow v. Simond, 2 Caine’s, 30. Rees v. Barrington, 2 Ves.Jun.540. King v. Baldwin, 17 John. R. (384). Wright v. Simpson, 6 Ves. Jun. 734. Rathbon v. Warren, 10 John. R. 595.] There are many cases also where the obligations of the surety would be discharged while those of the principal would remain. As in the case of a tender by the principal; here the surety would be discharged altogether,—but the tender would merely relieve the principal from interest and damages. [3 Wil. 539.]

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II. This defence may be interposed by a surety, in an action at law, and this court has the same power to take notice of his situation which a court of equity has. At law all obligers are considered as principals, and the question whether a surety has been discharged or not, is a question of law. The court will never drive a party to any circuity of defence, where the demand of the plaintiffs can be met and answered at once. In this case the new contract goes to the very foundation of the action, and if available to the defendants for any purpose, it may be interposed as a defence here. [2 Ves. Jun. 540. 7 John. Rep. 337 . 13 John. R. 174.]

HI. Tlie bond itself, in the recitals of the condition, discloses the fact, that tlie present defendants are sureties merely, and that Searle is the principal debtor. This is specially averred by the pleas, and admitted by the demurrers; there is, therefore, no doubt as to the facts upon that subject; and the inquiry next arises, whether the sureties are exonerated from their collateral undertaking by this defence ?

It appears from the second special plea, that Searle, the principal, "advised” tlie defendants, his sureties, that it was “his intention to deviate” from the voyage described in the condition of the bond, by touching at the Canaries, and some other port or ports after leaving Madeira." The sureties, considering themselves as placed in a situation of some peril by this determination of the master, gave immediate notice to the plaintiffs of this fact, and entered into a new contract with themj whereby the plaintiffs, for an additional premium, and for the distinct consideration of three hundred dollars, paid to them by the sureties, agreed with them, that the vessel should not be confined to the track of her original voyage, but might go from Madeira to the Cauaries, from thence to South America, to India, and elsewhere, according to the discretion of captain Searle. This new agreement changed the entire condition of the bond, and was a dispensation of the sureties from their obligations on the whole contract. A new voyage was determined upon, and the original one was totally abandoned; every thing connected with it was gone, and the defendants were exonerated from their first agreement. The original condition of

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the bond was entirely changed, and the instrument on which this action is brought, is to be looked upon as if dated on the 20th of February, 1826. The vessel, at that time, is supposed to be at Madeira, and when she departs from thence, she departs upon a new voyage, under the new agreement.

Where the termini of a voyage are changed, the alteration, of itself, constitutes a new voyage. [11 John. R. 261. 14 John R. 46. By the original agreement, the voyage was to terminate at New-York; by the new contract, it may end at any port in the United States. Suppose the vessel had deviated from the route specified by the new contract, could such a deviation be assigned as a breach of the condition of this bond ? To go on a new voyage, must certainly be an abandonment of the old one, and to charge tírese defendants for a violation of their contract, the plaintiffs must shew a breach of the conditions of their last engagement.

The relative condition of all the parties is changed, for these defendants have lost their remedy against Searle, by entering into a new contract. This agreement is not binding upon him in any way, and the sureties can do nothing either for the benefit or to the prejudice of the principal, without his consent. No action can be maintained against Searle on the new agreement, and the sureties are not liable upon the original one. A joint action will not lie against the principal and sureties upon either contract, but the principal continues responsible upon his original engagement, and the sureties upon the new one. The plaintiffs saw fit, for a fresh consideration, to discharge these defendants from their first undertaking, and accept of a new engagement in its place; this last agreement wc are ready to fulfil in all its parts.

IV. The original voyage was limited to the period of eighteen months; but the new voyage is not restricted by any such limitation. It could not be thus limited, because, under the new agreement, a different track is to be pursued, different countries are to be visited, and a different period of time would necessarily be embraced by the. new voyage. As, by the last agreement the new

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voyage is without limitation as to time, it is to be performed within a reasonable time.

The limitation of time was a qualification of the particular voyage, stated in the bond as it originally stood, and if a new voyage be substituted, then the limitation ceases. The plaintiffs must show that the time has been unreasonably protracted under the new agreement, in order to maintain this action. But our averment that the vessel has “ constantly prosecuted and pursued” the new voyage with all reasonable diligence,” and that she has not " as yet arrived at a port in the United States,” is, by the pleadings, admitted to be true. No breach of the obligations of the new contract is shown, and the plaintiffs have not, therefore, any cause of action against these defendants.

V. A parol agreement subsequent, may be set up by a principal in a sealed instrument, by way of defence, to an action upon the original contract, to save a forfeiture. This has often been decided by our own courts. Justice cannot be done to a defendant, when sued for a violation of the conditions of his bond, if he be not permitted to show that the plaintiff himself has dispensed with the performance of the condition. The new agreement does not constitute a substantive cause of action against the plaintiff, and is available to the defendant only by way of defence. If a court of law were to deprive the defendant of this privilege, he would in all such cases be compelled to resort to the equitable interposition of a Court of Chancery. But courts of law do not put this hardship upon him, and it has been expressly decided, that it is a good answer to the plaintiff’s claim, that he himself, by a subsequent parol agreement, has waived the performance of the very condition which lays the foundation of his action.

In this particular, there is a marked distinction between the situation of a plaintiff and a defendant. The former cannot in-graft a parol agreement upon a sealed contract; and if the latter has been altered or changed by a subsequent parol agreement, and the plaintiff seeks to recover by shewing a performance of the new agreement, he must resort to an action of assumpsit; for

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his remedy upon the covenant is gone. [Jewel v. Schroeppel, 4 Cow. R. 565.] But when a defendant is sued in an action of covenant for the non-performance of its conditions, he may shew, in his defence, that the plaintiff, by a subsequent parol agreement, dispensed with the performance of those conditions.

This position in no' way interferes with the principles of the cases cited by the other side. It is admitted, that where a party, in an action of covenant, relies uppn any alteration of a sealed instrument as the ground of a recovery, he must shew that-tlie new contract presents the same solemn evidence which the original presented. Not so with a defendant, who has been absolved from the performance of the very condition, for the non-performance of which an action is brought against him. He may shew the truth of the case, in any form of evidence, and it will always serve as an effectual shield. [Fleming v. Gilbert, 3 John R. 528. Keating v. Price, 1 John. Cas. 22. 15 Mass. R. 25 . 1 M. and S. 21. 1 Esp. Cas. 34. 1 East. 628. 4 Sear and Raw. 241. 2 Wend. R., Langworthy et al v. Smith et al. p. 587.]

Mr. Geo. Griffin, in reply.

It is of some importance, in the investigation of this cause, to have correct general views of the contract upon which the action is founded. It differs from an ordinary loan in two particulars ; first, the principal is put in jeopardy ; and secondly, the obligees are insurers. The contract assimilates itself nearly to a contract of insurance on time, but differs from it in this, that the parties contemplated a termination of the risk within the stipulated period. The liability of the underwriters, (that is of the plaintiffs in their capacity of lenders,) expired at the end of eighteen months, at all events, but they had the benefit of the chance, that the voyage might expire before the expiration of that time.

The two principal features in this contract, are the iter and the time. The time is of vital importance ; for if the voyage were to exceed eighteen months, then the plaintiffs would lose all interest on the premium, and the sum paid for the marine risk, although they would be-entitled to interest on the principal loaned. The limitation as to the time was therefore introduced into the

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contract with deliberation and care, and it. was of great consequence to the plaintiffs boll) in relation to the risk and to the interest.

The iter was also of the first importance. The plaintiffs were interested in the iter of the voyage to a much greater degree than ordinary underwriters; for they are no further interested in the iter, than as it enhances the risk. But here the time would be increased or diminished by the route pursued, and of course that became an object of interest. We are to presume that the plaintiffs, therefore, informing this contract, had these two prominent objects constantly in view.

II. The condition of the bond became forfeited on the happening of three contingencies, and the plaintiff’s would have been entitled to sue immediately upon the happening of either. 1. On the expiration of the time. 3. On a deviation. 3. Whenever the vessel ceased to have on board the stipulated amount of goods.

Keeping these general propositions in view, what was the contract of February 2Qlh, 18271 It has been treated as if it went to the foundation of the whole arrangement between the parties; and an importance has been given to it, which is in no way merited. It was not a contract to deviate, but a permission to deviate. It was a mere license, no matter whether as to a new or an old voyage. Its effect was to give to the defendants the privilege of changing the iter of the voyage: but does such a permission thereby necessarily enlarge the time within which the voyage was to be performed! The contract itself, in its terms, contains no such thing, and there is some difficulty in discovering from whence the idea is obtained. What would be the consequence of putting such a construction upon the license 1 The plaintiffs would assume a risk entirely disproportionate to the premium received, and greatly beyond that assumed by ordinary underwriters. For an additional consideration of three hundred dollars, they would become insurers, without limitation of time, of a vessel and cargo, which had permission to traverse the seas of three quarters of the globe. It is no answer, to say, that the

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voyage was to be performed within a reasonable time ; for the defendants have entered into no express stipulation upon this point, and the mode of ascertaining the termination of the risk, is altogether too vague uncertain to be adopted by the Court in giving a proper construction to the contract. The limit of an ordinary voyage is to be estimated from the customary track, but here there is no such rule of estimation, but every thing would be left to opinion and conjecture. The Court will not, therefore, adopt any such uncertain rule, to determine the meaning of an express contract.

But it seems to be supposed by the counsel for the defendants, that because the agreement disclosed by their second special plea, was made with the sureties to the bond, that therefore, it is to be •governed by different rules of construction. This is obviously a mistake; for the law construes all contracts by the same general rules. The obligations of principal and surety may indeed differ, but their contracts are to be expounded by the same rules.

But there is a point remaining of a graver character, and which the defendants cannot evade. Admitting the full force of their claim, for the purposes of argument, the agreement on which they rely is wholly insufficient for their defence. The instrument upon which we rely is a deed—a solemn agreement under seal. The defendants attempt to destroy the force of this contract, by another and a subsequent agreement by parol, made apparently without the same care and deliberation which attended the first. This cannot be done. It is a fixed and settled rule of law, that a contract by deed must be rescinded by deed to destroy its validity. It cannot be broken up and scattered by the mere force of a loose, vague, and careless agreement by parol. It would not be safe to allow an instrument made with so much care and pains, to be destroyed in this light and unsatisfactory manner; and the law declares, that the second agreement, in order to supercede the first, must have the same evidence of solemn consideration. In chancery the defendants might have the relief they now seek to obtain ; and we would freely grant it to them, if founded in justice and equity. But when in a court of law, they seek to stretch the new contract, far beyond the intentions of the parties, we

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stand upon our defence, and resist what becomes an unjust aggression. True it is, our courts have allowed a waiver of such a - contract to be proved by parol, and if we had brought our action for a deviations the new agreement might perhaps have availed the defendants, in their present defence. But here the attempt is to change entirely the sealed agreement, and put in its place a mere parol contract. The pretence is, that as (o these defendants, the covenant is gone—superceded and destroyed. A mere parol contract cannot supercede an agreement by deed, and this defence cannot therefore, under any aspect of the case be, by any possibility sustained.

after slating the pleadings in the cause,—It was contended, on the argument, by the defendants, that the plaintiffs having substituted a new voyage, for the one stipulated in the bond, the whole contract became thereby abrogated, at least as far as the sureties were concerned; or if not, that the terms of the condition of the bond were so far varied, that no action could be sustained by the plaintiffs, until the new voyage had terminated.

I do not think it necessary to consider how far it was competent for the defendants to set up a parol agreement to vary the terms of the bond,—though that question was much discussed at the bar,—as I am clearly of opinion, that the agreement alleged in the pleas did not affect or alter the contract of the parties, any farther than to preclude the plaintiffs from taking advantage of the deviation from the prescribed voyage. It amounted to nothing more than a permission that the vessel might deviate, and was, in no sense, an agreement that she should undertake a new voyage. It authorised a change" in the course of the voyage, but cannot, without doing manifest violence to the intention of the parties, be construed to extend the time for its performance.—■ The plaintiffs certainly, when they were granting, for a small additional premium, the liberty to deviate, which was asked by the defendants for their own security against the act of their principal, could never have supposed that they were substituting for a voyage of limited duration, one of indefinite extent as to time. Bnch a supposition is altogether extravagant. The true construction of the agreement set up in <hc pleas, is too plain to

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admit of a doubt. That part of the condition of the bond then, which bound the defendants to pay the money at the expiration of eighteen months, in case a loss of the goods did not happen, remained unaffected by the new agreement; and that time having expired, and no loss of the goods being averred in the pleas, they are clearly no answer to the plaintiffs declaration, and must be overruled.

Judgment for the plaintiffs on the demurrers.

George W. Strong, Att'y. for the pltffs. W. Slosson, Att’y. for defts. Barclay, Chance and Bayard.]