By the Court,
S. B. Strong, J.
If the referee was right in supposing that the plaintiffs’ only substantiated claim was for a return of the money advanced for the passage in the steamer North America on the Pacific, as paid on the mistaken [236]*236supposition that she was capable of performing the service, when she was in fact a wreck at the time, he erred in awarding the money on the third count in the complaint. That count was for a breach of contract; but, upon the principle assumed by the referee, the contract was inoperative for any purpose, and the plaintiff was entitled to a restoration of his money, because the condition on which it had been paid had wholly failed. It was so much money had and received by the defendants for the plaintiffs’ use, and could be recovered back under the appropriate money counts. The fifth count contains charges for money lent and advanced, and for money paid, laid out and expended for the use of the plaintiff, neither of which was sustained by the proof; but it omits the usual claim for money had and received, which, if preferred, would have sustained a report in favor of the plaintiff. However, as these cases come before us on an appeal by the respective plaintiffs only, the objection to the recoveries, so far as they go, must be considered as having been abandoned by the defendants, and could not, if urged on argument, which it was not, have availed them now.
The second and fourth counts aver general engagements to convey the plaintiff—the second from Hew York, and the fourth from San Juan del Sud—to San Francisco. But neither were sustained by the proof, as that established a special and an-essentially different contract.
The first count sets out a joint contract by the defendants to convey the plaintiff from Hew York to San Juan del Horte in the steamer Prometheus, from San Juan del Horte to San Juan del Sud by the transit company, and from San Juan del Sud on the Pacific ocean, to San Francisco, in the steamer Horth America. The plaintiff could sustain his action only by proving the alleged contract. The evidence adduced showed that the defendants were joint owners of the Horth America, and that they had, through their agent, promised to transport the plaintiff, on board of that steamer, from San Juan del Sud to San Francisco. But he failed to prove that the defendant Drew had any interest whatever in the means, or was at all concerned in the profit or loss, of transporting passengers from Hew York [237]*237to San Juan del Norte, or from the latter place to San Juan del Sud; and indeed it is quite apparent that he had none. In that respect this case differs from Champion v. Bostwick and others, (11 Wend. 571, 18 Id. 175.) In that case the money^ received on different routes, by separate owners, was to be--; divided between them in proportion to the number of miles ran ’ by each; and it was for that reason held that such owners were > jointly liable as copartners, to third persons. But Chancellor Walworth, who gave the only written opinion in the court for the correction of errors, said truly, that “ the case would be entirely different if each stage owner was to receive and retain the passage money earned on his part of the line, and to sustain all the expenses thereof, and was only to act as agent of the other in receiving the passage money for them, for the transportation of passengers over their parts of the line. In that case there would be no joint interest, and no liability to third persons as partners.” In this case there were three distinct , concerns—on the Atlantic, on the isthmus, and on the Pacific— | and there were different and separate owners of the steamers ! on the Pacific. There was no joint interest in the passage ' money, no agreement as to its division, or any proportion which ■ each was to receive. Each made its own charge, not dependant ¡ in any manner upon the others, and there was no agreement to share any profit or loss. There was not, therefore, any partnership. Drew had nothing to do with the navigation company j on the Atlantic, or the transit company on the isthmus, and 1 did not participate in the engagements of either. There were separate tickets for each of the three routes. That in which alone the defendant Drew was interested, was for a passage in the steamship North America on her then next voyage from San Juan del Sud to San Francisco. The agent who issued the tickets testified (and there was nothing to contradict him) that he issued the tickets to San Juan del Norte by Vanderbilt’s authority, across the isthmus by the authority of the transit company, and for the passage in the North America by the authority of the defendants. There was a separate and distinct price for each, for which the agent kept and rendered separate [238]*238. accounts. Each had its own profits, and paid its own losses, 5 and had no concern with the profits or losses of the others. " They had, it is true, the same agent, but he acted in his vicarious capacity separately for each. The agent swore that he was never authorized by the defendants to make any contracts for them, for passage on the Atlantic, or across the isthmus. The means of transportation were so arranged that the routes formed a continuous and connected line, and they were included by the agent in a single advertisement. It would seem, too, that they together purchased their coal in gross, at the isthmus, but when called for it was charged to -each separately as it was delivered. The joint agency, if it may be so called, extended no farther. There was no doubt, a joint liability to the vendors of the coal, and to the publishers of the advertisements, but if either or both constituted a quasi partnership, it extended no farther. There is a general understanding between the different rail roads in the country which connect together, as to their times of arrival and departure, and the routes are frequently advertised as forming one line; but so long as they continue disconnected as to the profits and losses of transportation, and each has or bears its own, there is ho partnership, and neither is responsible for the engagements of the other.
In the case under consideration, had the plaintiff’s professional adviser supposed that there was a general partnership or joint responsibility between the three concerns, he should, and probably would, have instituted his action against all the responsible parties. The defendants cannot, however, now raise the objection of a want of the necessary parties, except possibly on the ground of variance in setting forth a special contract, and especially as to a part of it where the defendants prosecuted are chargeable, if at all, by association with those who were alone the ostensible contractors.
Upon the whole, it seems to me that the plaintiff has failed in sustaining his first count, so far as it relates to the alleged participation of the defendant Drew in the contracts for the transportation across the Atlantic and the isthmus. If he had any joint agency or interest in those contracts, although it might [239]*239have been limited, when extended to the Pacific, to the steamer in which alone he had a part, I should have hesitated about agreeing with the referee, and might have held him responsible for the delay and other mischances in crossing the isthmus, so far as they may have resulted from the negligence of the association or of the concerns composing it.
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By the Court,
S. B. Strong, J.
If the referee was right in supposing that the plaintiffs’ only substantiated claim was for a return of the money advanced for the passage in the steamer North America on the Pacific, as paid on the mistaken [236]*236supposition that she was capable of performing the service, when she was in fact a wreck at the time, he erred in awarding the money on the third count in the complaint. That count was for a breach of contract; but, upon the principle assumed by the referee, the contract was inoperative for any purpose, and the plaintiff was entitled to a restoration of his money, because the condition on which it had been paid had wholly failed. It was so much money had and received by the defendants for the plaintiffs’ use, and could be recovered back under the appropriate money counts. The fifth count contains charges for money lent and advanced, and for money paid, laid out and expended for the use of the plaintiff, neither of which was sustained by the proof; but it omits the usual claim for money had and received, which, if preferred, would have sustained a report in favor of the plaintiff. However, as these cases come before us on an appeal by the respective plaintiffs only, the objection to the recoveries, so far as they go, must be considered as having been abandoned by the defendants, and could not, if urged on argument, which it was not, have availed them now.
The second and fourth counts aver general engagements to convey the plaintiff—the second from Hew York, and the fourth from San Juan del Sud—to San Francisco. But neither were sustained by the proof, as that established a special and an-essentially different contract.
The first count sets out a joint contract by the defendants to convey the plaintiff from Hew York to San Juan del Horte in the steamer Prometheus, from San Juan del Horte to San Juan del Sud by the transit company, and from San Juan del Sud on the Pacific ocean, to San Francisco, in the steamer Horth America. The plaintiff could sustain his action only by proving the alleged contract. The evidence adduced showed that the defendants were joint owners of the Horth America, and that they had, through their agent, promised to transport the plaintiff, on board of that steamer, from San Juan del Sud to San Francisco. But he failed to prove that the defendant Drew had any interest whatever in the means, or was at all concerned in the profit or loss, of transporting passengers from Hew York [237]*237to San Juan del Norte, or from the latter place to San Juan del Sud; and indeed it is quite apparent that he had none. In that respect this case differs from Champion v. Bostwick and others, (11 Wend. 571, 18 Id. 175.) In that case the money^ received on different routes, by separate owners, was to be--; divided between them in proportion to the number of miles ran ’ by each; and it was for that reason held that such owners were > jointly liable as copartners, to third persons. But Chancellor Walworth, who gave the only written opinion in the court for the correction of errors, said truly, that “ the case would be entirely different if each stage owner was to receive and retain the passage money earned on his part of the line, and to sustain all the expenses thereof, and was only to act as agent of the other in receiving the passage money for them, for the transportation of passengers over their parts of the line. In that case there would be no joint interest, and no liability to third persons as partners.” In this case there were three distinct , concerns—on the Atlantic, on the isthmus, and on the Pacific— | and there were different and separate owners of the steamers ! on the Pacific. There was no joint interest in the passage ' money, no agreement as to its division, or any proportion which ■ each was to receive. Each made its own charge, not dependant ¡ in any manner upon the others, and there was no agreement to share any profit or loss. There was not, therefore, any partnership. Drew had nothing to do with the navigation company j on the Atlantic, or the transit company on the isthmus, and 1 did not participate in the engagements of either. There were separate tickets for each of the three routes. That in which alone the defendant Drew was interested, was for a passage in the steamship North America on her then next voyage from San Juan del Sud to San Francisco. The agent who issued the tickets testified (and there was nothing to contradict him) that he issued the tickets to San Juan del Norte by Vanderbilt’s authority, across the isthmus by the authority of the transit company, and for the passage in the North America by the authority of the defendants. There was a separate and distinct price for each, for which the agent kept and rendered separate [238]*238. accounts. Each had its own profits, and paid its own losses, 5 and had no concern with the profits or losses of the others. " They had, it is true, the same agent, but he acted in his vicarious capacity separately for each. The agent swore that he was never authorized by the defendants to make any contracts for them, for passage on the Atlantic, or across the isthmus. The means of transportation were so arranged that the routes formed a continuous and connected line, and they were included by the agent in a single advertisement. It would seem, too, that they together purchased their coal in gross, at the isthmus, but when called for it was charged to -each separately as it was delivered. The joint agency, if it may be so called, extended no farther. There was no doubt, a joint liability to the vendors of the coal, and to the publishers of the advertisements, but if either or both constituted a quasi partnership, it extended no farther. There is a general understanding between the different rail roads in the country which connect together, as to their times of arrival and departure, and the routes are frequently advertised as forming one line; but so long as they continue disconnected as to the profits and losses of transportation, and each has or bears its own, there is ho partnership, and neither is responsible for the engagements of the other.
In the case under consideration, had the plaintiff’s professional adviser supposed that there was a general partnership or joint responsibility between the three concerns, he should, and probably would, have instituted his action against all the responsible parties. The defendants cannot, however, now raise the objection of a want of the necessary parties, except possibly on the ground of variance in setting forth a special contract, and especially as to a part of it where the defendants prosecuted are chargeable, if at all, by association with those who were alone the ostensible contractors.
Upon the whole, it seems to me that the plaintiff has failed in sustaining his first count, so far as it relates to the alleged participation of the defendant Drew in the contracts for the transportation across the Atlantic and the isthmus. If he had any joint agency or interest in those contracts, although it might [239]*239have been limited, when extended to the Pacific, to the steamer in which alone he had a part, I should have hesitated about agreeing with the referee, and might have held him responsible for the delay and other mischances in crossing the isthmus, so far as they may have resulted from the negligence of the association or of the concerns composing it.
The third and only remaining count sets forth a contract to transport the plaintiff from San Juan del Sudto San Francisco, in the defendants’ steamer North America, and complains of a breach of the engagement in not conveying the plaintiff in that vessel. That count neither avers an obligation upon the defendants to provide a substitute, in the event which had happened, nor claims any damage by reason of their neglect or refusal to forward him in some other vessel. The allegation of the breach is specific, and the plaintiff must be confined to that. It is clear that the contract, so far as it related to the North America, was made through a mutual mistake. Both parties of course supposed that she was capable of performing the stipulated service; whereas she was, at the time, a total wreck. • It was not very material, as to the question of the defendants’ liability, whether the mischance resulted from the carelessness of the defendants’ agents, or from inevitable accident. The defendants violated no duty to the plaintiff, for none such existed at the time of the loss. As the performance of their engagement was impossible, by reason of a fact which could not have been known to either party at the time, the only resulting obligation upon the defendants was to return the money to the plaintiffs, who had paid it upon a consideration which had wholly failed. That, with interest, has been awarded to him by the referee, and he is entitled to no more.
No doubt it was immaterial to the plaintiff by what vessel in particular he should be transported across the Pacific; and his main object was to contract for the voyage generally, rather than for its accomplishment by any particular means. And it is a general rule to construe a contract so as to effectuate the main design of the parties, where that can be done .without ex"pressly contradicting some clear and important provision. But [240]*240then the intent of both parties must be considered. Here, although the plaintiff’s main object was to secure a passage generally, yet the defendant Drew’s design was to furnish it by the steamer North America, in which alone he was interested.
[Kings General Term,
January 2, 1855.
S. B. Strong, Rockwell and Dean, Justices.]
Both parties have been unfortunate. The plaintiff lost his passage, and the defendants their vessel. The loss of the plaintiff is by no means peculiar. Others have been far more unfortunate through inevitable accident, and in cases, too, where, as in the instance under consideration, there was no legal redress.
The judgment upon the report of the referee, in each case, should be affirmed.