Lacombe and another against William and Robert Waln

[Philadelphia, Saturday, Dec. 28, 1811.] *Lacombe and another against William and Robert Waln. A cargo of flour and wheat was shipped from Philadelphia to Fayal, and from thence at the discretion of the shippers to two other ports ; ten running days to be allowed at each port the vessel might stop at, to determine upon the expediency of unlading or proceeding, and twenty-five working days at her port of discharge, for the discharge of her cargo. In case of further detention, a demurrage of fifty dollars per day to be allowed for every day she was detained, which should not be longer than 30 days. Freight at the rate of one dollar seventy-five cents if she discharged at Fayal, and .twenty-five cents for each subsequent port. The vessel arrived on the 14th February at Cadiz, which was selected as her port of discharge; and on the 17th the captain desired and offered to unlade the cargo. The supercargo refused to receive it, insisting on his right to keep it on board the 25 days, and within this period the vessel and cargo were wholly lost. Held that the supercargo was not bound to receive the cargo daring the 25 working days; and it being lost within that period, no freight was earned, notwithstanding there had been time and opportunity and an offer by the captain to discharge it. Qu. Whether freight would have been earned if the cargo had been lost after the 25 working days, and during the 30 running days allowed upon demurrage. This was an action of assumpsit to recover the freight of 1606 barrels of flour, and 3958 bushels of wheat in bags and in bulk, shipped by the defendants on board the ship Apollo belonging to the plaintiffs. Upon the trial of the cause before the Chief Justice at Nisi Prius in October last, the material facts now reported to this Court, were as follows: The defendants and others in December 1809 took up the slii.p Apollo to proceed with a full cargo “ from the port of Philadelphia to the island of Fayal, and from thence at the discretion of the shippers to two other permitted ports in Europe, not in the Mediterranean or Baltic, nor beyond Ferrol. Ten running days to be allowed at each of the ports she may stop at, to determine on the expediency of unlading or proceeding further; and at the port she may discharge at, twenty-five working days to be allowed for the discharge of said cargo, including the ten days above mentioned. In case of further detention, a demurrage of 50 dollars per diem to be allowed for each and every day so detained, which shall not be longer than 30 running days.” The contract was in a letter between the parties. On the 23d December 1809, the captain signed bills of lading for the above quantity of flour and wheat, deliverable at the port of Fayal or a subsequent port, to Charles Wilson supercargo on board, or his assigns, he or they paying freight for the said goods at the rate of one dollar and three quarters per barrel if the ship discharged at Fayal, and one quarter of a dollar per barrel for each subsequent port; and at the same rate for wheat, calculating five bushels to a barrel. *The ship arrived at Fayal on the 1st of February 1810, and on the next day sailed for Cadiz, where she arrived on the 14th. The supercargo determined to discharge there, and on the 17th the captain told him that he was desirous of unlading. The same communication was about ten days after arriving at Cadiz, repeated to the supercargo, who alleged the want of lighters, as they were at that time generally pressed into the service of government in consequence of the investment of Cadiz by the French; but upon being told that the ship’s boat was sufficient, he insisted upon his right to use the Apollo as a store-ship during the twenty-five days, and refused to receive the cargo. On the 4th of March a violent gale commenced in the bay of Cadiz, and continued until the 9th when the ship went on shore, and the next day was burnt by the French or British, together with the whole of her cargo, except two bags of wheat that had been landed as samples. There was some contradiction in the testimony, as to the opportunity of unlading. There were also questions as to the competency of one witness, and as to the effect of a receipt of part of the freight from the underwriters, from whom the plaintiff's had claimed and received in consequence of an alleged loss of freight, all which afterwards became the subject of a motion for a new trial; but the above facts are all that are necessary to introduce the material point in the case, which was, whether the defendants had twenty-five days to unload at Cadiz, at the risk of the plaintiffs. This point the Chief Justice reserved, and then advised the jury to find for plaintiffs or defendants, as their opinion should be, that 'it was through the neglect of the supercargo or not, that the cargo was not delivered before the loss. The jury found a verdict for the plaintiffs, believing, as they stated, that there was time and opportunity to land the cargo. Dallas and Ingersoll for the plaintiffs, upon the reserved point. We assert the general principle to be, that when a ^vessel arrives with her cargo, is safely moored, and offers and is ready to discharge, the freight is earned. After the finding of the jury, it must, at least for the purpose of this argument, be taken for granted, that the facts of the present case fairly warrant the application of the general principle. Whether there is any thing in this particular contract to call for another rule, is a distinct question. The general principle flows from the reciprocal obligations of the parties. The master is bound to transport the cargo to the port of destination, and there to be ready to deliver it according to the requisition of the bill of lading. But he is not bound to procure a permission to discharge, nor a place for the reception of the goods. These are duties which are incumbent upon the consignee, or the owner of the goods j and the failure to perform them cannot either according to the law merchant, or to the plainest rules of equity, affect the right of the ship owner to recover his freight. Hence it' has been held by this Court, that if the consignee cannot procure a license to unlade at the port of delivery, and the master is there ready and tenders a delivery, the freight is earned. Morgan v. The Insurance Company of North America, 4 Dall. 455. Hence also it has been provided by the marine ordinances of France, which are of very high authority upon questions of the law merchaut, that if a ship is stopped in her course or at the port of her unloading, by the deed of the merchant who freights her, or by the authority of public law, the freight notwithstanding shall be due to the master. 1 Yalin 656 ; 2 Peter’s Adm. Rep. App. Art. 9, page 26. The entire consideration of the promise to pay freight, is perfected by the performance of all those acts which the master is to perform alone, and by his readiness to perform all those which require the co-operation of the owner; and in this respect mercantile law does not differ from the common law, or any other code whose basis is reason, because it is an uncontrovertible dictate of reason that the neglect of one ^contracting party, should not defeat or prejudice the right of the other. There is another, though subordinate, reason for this general principle, that springs from the interest which the master has in the goods he has transported. His right to freight cannot depend upon the actual delivery and landing of the goods, because then he could not have a lien for the price of carrying them. His possession would be gone before his right to freight would be consummate. On the contrary, it is universally admitted that he is not bound to part with the goods until his freight is paid, which shows that his freight may be earned before he has parted with them; and from this the consequence must follow, that the right is complete, when he has performed every thing short of the actual delivery, the duties of the owner commencing in this stage of the transaction both as to payment of the freight, and reception of the goods. Abbot 181, 182, 186, 160,162, 132, 133. Then as to the particular contract in this case. The contract allows twenty live days at the port of discharge without demurrage, and thirty with. The lay-days are fixed only for the purpose of ascertaining the time, before which there shall be no penalty for delaying the ship. They are intended as an accommodation to the owner, so far as to give him time for receiving the goods without paying demurrage, but not to prolong the risk or jeopardy of the master’s freight. There is no reason why any other construction should be given to this provision. The master has performed his entire duty. He has established the consideration upon which freight arises. There is indeed a strong reason why it should not be otherwise. There is no compensation paid to the master for the delay. It is without convenience or profit to him. It is exclusively beneficial to the shippers. Upon what principle of reciprocity is it, that a delay without consideration as it respects the master, should suspend his right to freight, and at last be the means of extinguishing it? If it is suspended for the twenty-five lay-days, upon the same ground must it be for the thirty succeeding days. The delay it is true is gratuitous as to the first, and is compensated during the last period ; but this cannot alter the case as to the present question. Though the privilege of delay is paid for, *still it is a privilege; and if the shipper a right to defer the discharge of the goods at the risk of the master for twenty-five days without pay, he has the same right to defer it for thirty more at the same risk with pay. This, however, cannot be contended for. It is impossible to say that it was the intention of the parties to this contract, that for fifty-five days the right to freight should be kept in a state of complete uncertainty, for the accommodation of the shipper. It is a construction of the contract with exclusive reference to. the interest of one party. If the master lands the goods against the will of the consignee, and they are destroyed he must answer for them. He, therefore, cannot land them. If he keeps them on board, and they are lost, he loses his freight. Where is the compensation for the risk? Demurrage is not a compensation for the carriage of goods, or freight, but for delay merely, for the loss of time, and the incidental expenses of the ship. Beawes Lex. Mer. 142. It cannot then, we submit, be held to put the cargo at the risk of the master as it respects the compensation for carriage, or freight; and if demurrage cannot do this, neither can it be done by a delay for which there is no compensation at all. Hare and Rawle for the defendants. The general principle asserted by the plaintiffs, is not supported by the authorities they have read, nor can it receive support from any thing that has been adjudged or written upon the subject. There is no such rule in the law of merchants, as that a readiness to deliver at the port of delivery consummates a right to freight. On the contrary, it is met at the threshold by this obvious objection, that if a readiness by the owner to accept, should be concomitant with the offer to deliver, and before actual delivery a loss should take place, still the owner without the least neglect would be answerable for full freight. It is also opposed by authorities of several kinds. First, by the practice in England, which requires the master to land the goods before he can demand his freight. Abbot 161. So by the ordinance of Rotterdam, Art. 157,158; 2 Mag. 106; by the ordinance of 1681, Liv. 3; Tit. 3; du Fret. Art. 23 ; 1 Valin 665 ; and by our own act of congress for the government of seamen in the merchant’s service, which does *not give seamen their wages at the last port until after the goods are discharged, upon the ground that until that event no freight is earned. 1 U. S. Laws 140. There is no such embarrassment to the master as the opposite argument supposes. Eor the purpose of completing the right to freight, he may land the goods after a reasonable time has elapsed, and retain possession on land until the freight is paid. Abbot 161; Lawler v. Keaquick, 1 Johns. Ca. 174; Pothier 37, sec. 6. By his contract and the usage of merchants, he must keep the goods on board a sufficient period to give the consignee time to prepare for their reception. After that period he may land them when he pleases; but he acquires no right to freight until he does. This is, we submit, the general rule. The case in which freight was held to be earned without a delivery, was one in which the government prevented the delivery; and the authority on which this Court went was the French ordinance, and not the general law. The question may be considered more particularly with reference, 1, to the nature of the contract of freight generally ; 2, to the particular contract in this case. 1. What is the contract of freight ? It is in its nature an entire contract, and unless it be completely performed, in general the merchant derives no benefit, and is subject to no payment. Abbot 179 ; 1 Com. on Cont. 341; Cook v. Jennings, 7 D. & E. 381. It cannot be divided, unless there be a new agreement. The original contract is indivisible, and if not wholly performed, is not performed at all. What then is the entire contract of freight? Is it for the use of the ship during the time limited, or is it only for the conveyance of the merchandise ? It is a contract for the use of the ship, sometimes for the voyage generally, and sometimes for a period more extensive than the voyage. The French authors have discussed this subject with more learning than the English. The contract of freight, says Pothier, is a contract by which some one hires a ship in whole or in part to a merchant for the transportation of merchandise, and binds himself to transport them in that ship to the place of destination for a certain sum, which the merchant binds himself reciprocally to pay for the freight, that is for the hire of the S^P' Pothier *Chart. Part. 4. The charter-party, says the same author, should contain the name and port of the vessel, the name of the master and freighter, the place and terms of loading and discharge, with the compensation for delay. Pothier 17, 51. The terms of loading and discharge then are a part of the contract for which freight is payable. If the cargo is not ready, the master must wait the stipulated time of demurrage, or he loses his freight. Beawes Lex. Mer. 134. And so upon the same principle he must wait at the conclusion of the voyage, for the compensation of demurrage, if the time is exceeded. Randall v. Lynch, 2 Campbell 352; Moorson v. Bell, 2 Campbell 616. If therefore a contract be made for the transportation of goods on a certain voyage, and a fixed period is allowed to the shipper for their discharge at the port of destination, it is a contract for the hire of the ship during the voyage and also for the specified time; and unless the shipper has the use of the vessel during the voyage- and the specified time if he chooses to claim it, the contract of affreightment is not performed. 2. What then is the contract in this case, but a contract for the hire of the Apollo during the voyage in question, and twenty-five working days at the port of discharge ? And has this contract been performed? The use of the vessel for this period is a condition precedent to the payment of freight; and yet the argument is that we had no right to the use of her during this time, but that the master could require of us within the period to receive the cargo. Why could he make the requisition ? There can be no reason for it, but that our right to use the vessel was at an end. But in that case what becomes of the lay-days ? They are struck out of the contract. How is it possible that he should be entitled to discharge when we are not bound to receive, or that if we are not bound to receive, we are bound to pay the full hire of the ship, as though we had received ? The ease then comes to this. Freight is to be paid upon delivery. We are not compelled to receive until the end of the twenty-five days. He therefore cannot be entitled to deliver until that time. The goods are lost before his right to deliver arises. Can he claim *under the contract the benefit of delivery ? It is impossible to say that the entire contract has been performed. The principle is the same where there is no stipulation for lay-days. In such a case reasonable time takes the place of a fixed period, and this brings us back to the general principle that a mere readiness to deliver is not sufficient. The reasonable time must pass at the risk of the ship-owner. Valin says that where the charter-party does not fix the time, usage has settled it at fifteen days, after which the master may demand damages; 1 Valin 624 ; and this shows that until these fifteen days have expired, the master is in the performance of his original contract, otherwise he might demand damages for the entire delay. It is said that the plaintiffs obtain no compensation for the lay-days. But this is not so. The freight is for the entire contract, and is settled so as to give the ship-owner a compensation for the whole. It is unnecessary to examine more particularly what would have been the case if the vessel and cargo had been lost after the lay-days had expired. Here they were lost before, and while that period was unexpired for which the use of the ship under an indivisible contract was to be compensated by an indivisible freight. In this case there was a motionfor a newtrial by the defendants, as well as a point reserved; and the counsel on each side claimed the right of beginning and concluding the argument. The court decided that on the motion for a new trial the defendants’ counsel who made the motion should begin, and that on the reserved point the plaintiffs’ counsel should begin; of course there were two distinct arguments, the last of which only is reported, as the court did not think it necessary to give an opinion upon the former. The court intimated that as this clashing of the two rules would produce inconvenience, it might be necessary to make another rule embracing cases like the present. [MAJORITY — Tii.ghman C. J. Yeates J. Brackenridse J.] Tii.ghman C. J. The defendants took the ship of the plaintiffs on freight, to carry a cargo from Philadelphia to a port in Europe. In the agreement between the parties, it was stipulated, that twenty-five working days should be allowed for discharging the cargo, and in case of further detention, a demurrage of fifty dollars a day should be paid for every day of such detention, which should not be longer than thirty running days. The port of discharge was Cadiz; and during the twenty-five days allowed for the discharge of the cargo, the ship was lost in port. But, as we must now take for granted, there was time and opportunity for discharging the whole cargo, and the captain was ready to do it, but was prevented by the supercargo, to whom the cargo was deliverable by the bills of lading. It may be assumed for the present, without deciding the point, that where there is no special agreement, a reasonable time is allowed for discharging the cargo; and if owing to the fault of the consignee, it is not delivered in that time, *H>e freight is earned and must be paid. It is said by Valin (1 Valin 624) that where the time for lading and unlading, is not fixed- by the charter-party, custom has established the period of fifteen days, after the expiration of which the master may demand damages, &c. But he does not say, nor is it said by any author that I know of, nor has it been expressly adjudged, whether the freight is earned, if the ship should be lost within the fifteen days, and before the cargo is delivered. In the case before the Court, we are relieved from all difficulty with respect to the time which might be thought reasonable at the port of Cadiz, because the parties have fixed it at twenty-five days. It has been contended on the part of the plaintiffs, that when the ship is safely moored in a place proper for delivery, and the captain offers to make delivery, the freight is earned. It appears to me that this is carrying the matter too far. The master is bound by the bill of lading to make actual delivery to the consignee, and if the consignee agrees to accept and the ship is lost before the delivery takes place, I cannot see upon what ground the freight can be claimed. The delivery is as much a part of the contract as the carriage. But here the master tendered himself ready to deliver, and the consignee refused to proceed to the discharge, conceiving that by the terms of the agreement he was not obliged to unlade in less than twenty-five days. Almost all charter-parties ascertain the time to be allowed for loading and discharging, called lay-days. This is a very useful provision, and leaves no ground for dispute about custom or reasonable time. It is the act of the parties, fixing the time that they judge reasonable. There are two parties to a delivery, one delivers and the other receives; without a receiver there can be no delivery. Now it appears to me to be extraordinary, that the consignee should be under an obligation to receive, in a less time than has been stipulated. And if he is under no obligation to receive, upon what principle can he be subject to damage for not receiving? Why is he allowed twenty-five days, if the master may call ou him to receive the cargo in less than twenty-five days? The plaintiff contends, that no consideration is received by him for these twenty-five days, and that the sole object of this provision, is to fix the time when compensation for demurrage shall begin. As to the *consideration, the answer is plain, that thq freight was intended as a compensation both for the carriage and lay-days. The plaintiff’s construction deprives the defendants of almost the whole advantage of the twenty-five days. They insist that it is the duty of the consignee to receive the cargo, whenever the master is ready to deliver. If the delivery takes less than twenty-five days, the consignee can have no object in detaining the ship any longer, and the residue of the time is of no value to him. Another great objection to this construction is, that it leaves the parties exposed in case of loss, to all the inconvenience of litigating whether the cargo might not have beeu delivered before the loss happened; and how great that inconvenience is, has been fully exemplified in the present instance. A much more reasonable construction of the agreement is, that the consignee shall have the solid advantages of taking his own time, provided he does not exceed the stipulated lay-days. Upon that principle, if a loss happens before the lay-days are expired, the owner of the ship will be entitled to freight only for so much of the cargo as has been delivered. I give no opinion, what the law would have been, if the ship had been detained by the defendants beyond the lay-days, and the loss had happened during the thirty days allowed for demurrage. Neither is it necessary to give an opinion on the reasons offered by the defendants in support of the motion for a new trial, because a new trial necessarily results from the decision of the point which was reserved. My opinion on that point is, that the plaintiffs are not entitled to recover in this action, because the freight is not earned. Yeates J. This action is brought to recover the freight supposed to be due on flour and wheat laden on the ship Apollo, on a voyage to Eayal, and from thence to Cadiz. A verdict passed for the plaintiffs, and a motion for a new trial has been made on five distinct grounds; but I shall content myself with expressing my opinion upon the point reserved on the trial. [His Honor then stated the facts.] The question reserved was, whether on this state of facts, the defendants were liable for freight ? The Apollo performed in safety, with the goods laden on board, her voyage from this port to Eayal, and thence to Cadiz, in thirty-two days. *The freight agreed on in the bill of lading was at the rate of one dollar and seventy-five cents if the ship discharged at Eayal, and twenty-five cents per barrel for each subsequent port; and at the same rate for the wheat, calculating five bushels equal to a barrel, with five per cent, primage and average accustomed. Whatever may be the gen'eral maritime law of affreightment, nothing is more certain than that the contracting parties may enter into such particular stipulations as they may think proper, not interdicted by the laws of the country where the contract is made; and such conventions will supersede the general law. In order to carry their agreement into full effect, according to their intention, it is obvious, that every word they have made use of, should be taken into consideration, and due weight given to each expression that is susceptible of a fair meaning. Twenty-five working days are here allowed for the discharge of her cargo; and she might be detained beyond that time a period not exceeding thirty running days, on payment of the agreed price of fifty dollars each day. Now the contract for the conveyance of merchandise is in its nature an entire contract; and unless it be completely performed by the delivery of the goods at the place of destination, the merchant will in general derive no benefit from the time and labor expended in a partial conveyance, and consequently be subject to no payment whatever, although the ship may have been hired by the month or week. The cases in which a partial payment may be claimed are exceptions to the general rule, founded upon principles of equity and justice, as applicable to particular circumstances. Abbot on Shipping 224 (London ed.); 7 T. R. 381; Cook v. Jennings. On the part of the plaintiffs, it has been contended, that the contract under consideration did not change the general law on this subject; and that the lay-days had no connection with the freight, which was not increased thereby;—and that there is no reason why the freight should remain in suspense at the risk of the ship owners for twenty-five tvorking days beyond the time, when the voyage had been performed in thirty-two days, and the captain was willing and ready to deliver the goods to the supercargo. But these remarks are plainly bottomed on a petitio principii. We well *know that in mercantile transactions, no risk is run without a premium proportioned to its extent. The allowance of the twenty-five days for the discharge of the cargo, is as much a part of the agreement, as that the ship should sail to her ports of destination; and the privileges secured thereby are evidently for the benefit of the shippers. Would it not be unwarrantable in us to infer that the owners of the vessel did not consider the risks attendant on this period of time, when they fixed the rate of freight ? The contract was entire, and must be complied with throughout. The ship owners knew, or were bound to know, the state of the ports to which she might proceed ulterior to Eayal, and subjected themselves to the risks which might be encountered within the stipulated portion of time for the discharge of the cargo. I thiuk it a fair and rational construction of the plaintiffs’ letter, that the supercargo, who was the immediate agent of the shippers on board the vessel, should have the option of determining at the port of discharge, when he would receive the cargo, provided he did not exceed the twenty-five working days secured to his constituents, including the ten days allowed at each of the ports he might stop at; and until the expiration of this time at least, the freight was not demandable. The supercargo might, if he thought proper, abridge this period by his own act: but he had it also in his power to insist during that period, that the goods should not be discharged from the hold of the vessel, and that she should for the intermediate time be considered as a store-ship at the risk of her owners. In this view of the point reserved, I am of opinion, that a new trial should be awarded. Brackenridse J. The obvious construction of the terms ' of this contract, taken from the reply of the defendants to the letter of the plaintiffs, would seem to be, that the shipper of the goods, the defendants, had a right to detain the vessel, the Apollo, on board of which the goods were shipped, twenty-five working days, at the port of discharge, deducting from those twenty-five, the days during which the vessel had been detained at one or two other ports at which she might have touched and been detained, for the sake of determining on the expediency of unloading, or proceeding further; *a^ eac^ one or two ports she had the privilege of detaining ten days, but these days to be reckoned part of the twenty-five ; so that at the port of discharge, if it should happen to be the third port, she would have but five working days, before the demurrage of thirty days would commence, for which fifty dollars per diem was to be allowed. It was within the twenty-five days, at not more than the third port, and before the days of demurrage had commenced, that the vessel was lost. But even had the days of demur-rage commenced, and not expired, it would seem to me that the defendant had the same right to the use of the ship, that he would have had, if sailing on the ocean, and before she arrived at any port. What is it whether she was in her dock, in the bay, or on the sea? It is the use and occupation of the vessel at the port, for the conveniency of waiting until a market should be determined on and made, that was contemplated. The length of the voyage depending upon winds, could not be comprehended under the terms of a contract; but the time of detention at a port or ports, could be ascertained. And this is the only object of the specification of time, so precisely apportioned, and stipulated in this contract. The freighter of the goods, the defendants, had twenty-five working days, at the port of discharge, including the days delayed at a first or second port, before the arrival at the port of discharge, which must be at least the third port at which the vessel might touch; and after this, thirty days more, under the denomination of days of demurrage, paying over and above the freight agreed upon, fifty dollars per diem. Not until after the expiration of the thirty days, if the defendant should choose to detain, can I consider the voyage as determined, so far as respects the freighter of the goods. As between the owner of the vessel, and the insurer on the vessel, it must depend upon the contract expressed or implied. The voyage may be considered as terminated, as respects the insurer, but not as respects the freighter of the goods. Eor the agreement to detain in port, looks to a time beyond the sea voyage; and during which, what can the vessel be as respects the defendant, but a store-ship for his use, where his goods might remain until he could contract for their sale. As has been argued, the contract is entire, and caunot be ^performed in part, unless the party in whose favor it is to be performed, should dispense, at any stage, with the completing or performance of the whole. I do not distinguish a contract to carry in a ship, from a contract to carry in a loagon ; the one a vehicle by land, the other by water; and the terms stipulating the use, subject to the same construction in the one case as in the other. The use must be completely afforded before the right to the hire can arise. The greater danger of a dock or of a bay than of the high sea itself, is a matter to which we must consider the contracting owner of the vessel to have looked in his stipulation. Were it not that books have been read, which would seem to imply that there is some difficulty in this case, I would be more confident that I am right in my ideas of the construction of the terms of this contract, which depends upon a few written words. But I am led to reflect with myself, who knows but that there may be some mystery in these maritime cases, which people at land, and who have not ventured out to sea much in commercial matters, I mean commercial law, or rather maritime, cannot comprehend; and which we must deduce from the law merchant or maritime, founded on principles sui generis, and peculiar to itself, arbitrary and consisting of positive rules, without a reference to reason and convenience ? On the contrary, so far as I have any knowledge of it, which I will acknowledge is much less than of some other parts of the law, my practice in the inland parts of the state not having led to it; but so far I say as I have any knowledge of it, there is no law that is founded more on principles of reason and convenience. Eor it is reciprocal and mutual accommodation that has begot it. It is founded in usage, and has its sanction in consent. A sense of mutual benefit and convenience is the foundation of the usage. But supposing the principles of this law to be arbitrary, and positivi juris, and not merely what usage has made them, I have been able to collect nothing from the books read or referred to, that at all militates with that construction which the reason of an uninformed man, well understanding the subject and canvassing it on the principles of convenience, would put upon the terms used in a mercantile contract; whether from the correspondence of the ^parties, or from those to which the contract has been formally reduced. Having decided the reserved point in my own mind, against the plaintiffs, it will be unnecessary to go into a consideration of the grounds of the motion for a new trial, on the score of evidence admitted contrary to law, or the verdict being against the weight of evidence, and the justice of the case. * Eor the reserved point being decided against the plaintiff, he fails in having a right of action. It was on this principle that I had understood it, that the reserved point was to have been argued first. How the argument for a new trial came to be proceeded on first, I have not been able to comprehend. There would seem to have been some misunderstanding, at least on my part, in the case. But this I remark only with a view to settle the rule in future; which, it would seem to me, ought to be, that in all cases where the determination of the reserved point, as in the present case, being against the plaintiffs, will determine their right of action, it ought to be argued before the motion for a new trial. But at the same time this general rule might be subject to an exception of the Court choosing to hear some discussion of the merits, or rather statement of the facts of the case, and the law arising on them, in the first instance. It will sometimes happen, that where justice is found, the Court may be justifiable in an astutia to support the action on a reserved point. New trial awarded.