In an action of covenant upon a char ter-party for freight, it is no defence that re the plaintiff ceived part of the freight in money from the defendants' agent abroad, and COVE MARSH V. PEDDER and Others. MOVENANT on a Charter-party. The plaintiff was the owner, and the defendants freightit is no ers of the Rover; the voyage was from London to Antwerp, and the freight and primage 410l. The declaration averred a delivery of the goods at Antwerp, and alleged a breach in the non-payment of the freight. There were several pleas: the substance of them was-That one Joseph Osey, to whom the captain, (who was the plaintiff,) was directed to apply at Antants) drawn by werp for the freight, &c. paid plaintiff 151l. 13s. 6d. upon, and ac- part of the 4107.; and, for the residue, gave his cepted by, cer; bill of exchange, drawn on Baker, Mant, and the residue in a bill (without the privity of the defend the agent tain merchants at London; was after wards disho of the drawer and which bill Page, in London, payable at sixty days' date to plaintiff's order, for 2581. 6s. 6d. ; which bill was noured upon duly accepted; and that plaintiff received the the insolvency 151. 13s. 6d., and the said bill of exchange, in and acceptors. full payment and satisfaction. The plaintiff replied to these pleas, that he did not take the bill pay the freight in satisfaction, but as a security only, and that, by owing to the plaintiff, and reason of the insolvency of Osey, the drawer, But the de fendants are still bound to such bill is not to be deemed and Baker and Co., the acceptors, he was un payment, though defendants were not informed of the transaction until after the failure of the parties to it. 1815. MARSH able to procure payment of it. It appeared, that defendants had given the plaintiff a letter to Osey, at Antwerp, directing him to pay for the entire freight 410l. and to give them the earliest intelligence of the vessel's arrival. The plaintiff had and Others. been before chartered by the defendants; had been addressed to Osey, and received payment from him. The defendants likewise sent the following letter to Osey :-" Mr. Joseph Osey,-According to the manifest, you will receive for our account 4591. 9s. 11d. The balance we shall be obliged by your remitting to us, less your charges." On the arrival of the vessel, Osey paid in discharge of the freight 151. 13s. 6d., and gave a bill of exchange for 2581. 6s. 6d., the residue of the freight, drawn by his agent, to the order of Marsh, upon Baker, Mant, and Page, London. This bill was accepted by plaintiff without any stipulation. On the 1st of May, Osey remitted defendants 721. and claimed a deduction, from some monies of defendants in his hands, of 410l. as paid to plaintiff for their use. The bill was regularly accepted by Baker and Co. in London, and became due in the latter end of June. In the mean time Osey, and Baker and Co. became insolvent, and the bill not being paid, plaintiff applied to the defendants for the residue of the freight. The Solicitor General, and Campbell, for the plaintiff, relied on Tapley v. Martens, 8 T. R. 451. and Everett v. Collins, 2 Camp. 515. v. PEDDER 1815. MARSH PEDDER Best, serjeant, and Scarlett, for the defendants. It appears by the charter-party, that the freight was to be paid at Antwerp, and not in London. It also appears that there was a sum of money and Others. in Osey's hands, the balance of which, after payments which he was directed to make, he was to remit to the defendants. The plaintiff takes the bill without communication with the defendants. He thus got a new security upon another person. No captain, who is to receive his freight at Antwerp, having taken a bill drawn upon a third person (which is the material distinction) can, on any contingency, resort to the freighters, who authorized him to receive the money for the freight at the port of delivery. If the plaintiff had told Osey that he took the bill as security only, that would have reserved his right against the defendants; but if he mention nothing about security, he takes it as payment. Tapley v. Martens does not apply. This is no bill of exchange drawn on defendants here. No intimation is given to defendants that the plaintiff had got the bill, till Osey failed. Plaintiff must take the consequence upon himself if he will receive a bill drawn on a perfect stranger. If a bill had been given, and not accepted, it would not have done; but, by interposing a third person, a new security is given. If, upon simple contract, a bill of the party had been given and dishonoured, it would have been no payment; but the security of a third person might be pleaded as accord and satisfaction. If a person be the principal in a bond, and the obligee takes a bank-note in discharge of the bond, and the bank fails, it is payment. Besides, plaintiff might select this mode of payment for his own con venience. 1815. MARSH V. PEDDER GIBBS, C. J.-The question is, ants liable at law for the freight. venants to deliver the goods according to the charter-party; the defendants covenant that they will, by themselves or assigns, pay freight. If the defendants themselves had paid part by bill, and that bill dishonoured, unless there had been proof that the plaintiff took it in full satisfaction, it would not have been payment. It is the same when payment is made through an agent, and part is paid in money, and part by a bill which is dishonoured. The defendants will remain liable to so much of the freight as is not paid. Circumstances may vary this case. If, when money is offered, the plaintiff chooses, for his own accommodation, to take a bill, there would be some weight in the argument. It is not stated that the plaintiff knew that Osey was to pay him in cash. It is not to be inferred that Osey was so to pay him. The defendants, therefore, are liable for so much of the freight as remains due. are the defend- and Others. The plaintiff co Verdict for plaintiff, 2581. 6s. 6d. The Solicitor General, and Campbell for plaintiff, Best, serjeant, and Scarlett, for the defendants. [Attornies, Holt and F. and Dawes and Co.] 1815. MARSH 2. PEDDER and Others. Tapley v. Martens is materially distinguished from the present case. A. wishing to send goods to B. at X., employed C. to carry and deliver them to B., and engaged to pay C. for the freight; C. on delivering the goods took a bill of exchange from B. drawn on A., which bill was never paid. It was held that A. was liable to pay the amount of the freight to C., notwithstanding the bill of exchange. 8 T. R. 451. But if the plaintiff had been guilty of any negligence after he had taken the bill, in not endeavouring to enforce payment of it, that might have been an answer to the demand in the principal case. All that could be required of the plaintiff was, that he should use common prudence, and in the above case he did use common prudence. A bill might have deluded the most cautious man; it was a payment in the most usual mode of payment in the commercial world. Moreover, the defendants by sending the goods to Osey at Antwerp accredited him there. In Everett v. Collins, Lord Ellenborough says, "If a creditor prefers a bill of exchange, accepted by a stranger, to ready money from his debtor, he must abide the hazard of the security he takes." In that case, the plaintiff was offered by the agent cash in payment, or a check upon his (the agent's) banker; and he preferred the latter, which being dishonoured, it was held not to discharge the debtor, although the agent failed with a balance of his principal in his hands to a large amount. In that case the agents were considered as servants of the defendant, and their check was his check. 2 Camp. 515.; and see the cases referred to in the note. |