6 Cal. 29 | Cal. | 1856
Mr. Justice Heydenfeldt concurred.
This action was brought by plaintiff to recover from defendant certain money advanced on a contract of affreightment.
The complaint alleges that defendant contracted to carry certain freight from the port of Acapulco to Valparaiso, in consideration of a certain sum of money, a portion of which was paid by plaintiff in advance. That defendant received said freight on board his vessel and departed on the voyage, but did not perform his contract, because of the loss of said vessel at sea.
The complaint also contains a second count for money received to the use of plaintiff. To this complaint defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The Court below sustained the demurrer, and judgment was rendered in favor of defendant. From this judgment, plaintiff appealed.
The second count of the complaint is bad, because it is not alleged that demand had been made on defendant. A party receiving money to the use of another, is rightfully in possession until the same is demanded. ■> ^
The only question involved in this case is, the right of plaintiff to recover advanced freight money upon the non-performance of the contract of affreightment.
The general rule of law is, that where money is paid by one person in consideration of an act to be done by another, and the act is not performed, the money so paid may be recovered back. Contracts for carrying freight form no exception to this rule, unless by express stipulation of the parties.
Chief Justice Kent, in Watson v. Duykinck, says: “The general rule undoubtedly is, that freight is lost unless the goods are carried to the port of destination. The rule seems also to go further, and to oblige the master, in case of shipwreck, to restore to the shipper the freight previously advanced.” See 3 John., 339, and cases there cited. The general principle undoubtedly is, “ that freight is a compensation for the carriage of goods, and if paid in advance, and the goods be not carried by reason of any event not imputable to the shipper, it then forms the ordinary case of money paid upon a consideration which happens to fail.” Ib., p. 340.
Chief Justice Parker, in Griggs v. Austin, 3 Pickering, 23, says: “ It would be an affectation of learning to go over the ground so ably pre-occupied in the opinion given in that case, (Watson v. Duykinck,) especially as the same ground has been traversed by Mr. Justice Story in a note to his edition of Abbot on Merchant Ships. It is sufficient then to say, that by reference to the above cited opinion, and the note of Mr. Justice Story, it will be found to be the established law of the maritime countries on the continent of Europe, that freight is the com
I am aware that there are decisions of the English Admiralty Courts, which seem to be in conflict with the eases cited; but the weight of authority, and the uniform ruling of the American Courts, are conclusive as to the right of the shipper to recover.
The final judgment of the Court below, as well as the judgment sustaining the demurrer, is reversed with costs, and the cause remanded.