Constable v. . Clovery

1 N.C. 638

• Court: Court of King's Bench
• Decided: July 5, 1793
• Status: Published

Opinion

In covenant. The case was this. The master of a vessel covenanted to sail with his freight by the first fair wind, and the other party to pay the freight. The master brought his action for his wages, and alleged that he had performed the voyage. The other traversed that he did not sail with the first wind; the plaintiff demurred, and the defendant joined in the demurrer.

Stone argued that it is a bad traverse, because he has performed the covenant if he sailed within a convenient time. It is not necessary that he should sail with the first wind. It is a rule that the traverse ought always to be of the material matter of the plea alone, as appears by 15 E., 4, 2; 19 H., 8, 7; 32 H., 6, 16; 2 H., 5, 2; 3 H., 6, 33; 7 Rep. Ughtree'scase, and the 44 E., 3, there cited, prove this plainly. The traverse cannot be maintained clearly, because the wind may blow fair for a quarter of an hour, and the vessel may spring a leak while the wind is fair.

Curia assented, and

JONES, J., said, most clearly, an action of covenant lies for not sailing with the first wind; For thereby the market may be lost. Postea, p. 664; Poph., 161; Bendl., 146; Noy, 75; Palm., 397.