The cause stood over for consideration until this day, when the following opinion was delivered by his Honour;
The Chancellor.
1. The first question is, whether the plaintiff is not entitled to recover the stipulated compensation which her husband was to receive, on the completion of the voyage, for his services as supercargo.
The instructions under the hand of the defendant stated, that the testator was to receive for transacting the contemplated business, two and a half per Cent, of the value of all property brought home for the account of the defendant, arising from the proceeds of the outward cargo, after deducting the duties and other expenses, &c. That he was to have his reasonable expenses, while on the voyage, paid out of the cargo 3 and that he was to have a share of five per cent, or one twentieth part of the nett profits of the voyage, at its termination.
It is contended, that the services were substantially and beneficially rendered by the supercargo and his substituted agents, and that these services received the approbation of the defendant.
It is admitted, that the voyage was successful and yielded a profit, though the defendant will not disclose the amount of the profits. The answer says, that the defendant may have expressed his approbation of the conduct of the substitutes 3 and a witness heard him acknowledge, after the return of the ship, that the testator had acted as well as he could under the circumstances, and that the con- , duct of the substitutes was satisfactory.
There are other circumstances from which we may infer the defendant’s admission that the commissions were due, though the supercargo had left the ship at the Cape of Good Hope, Thus, in the defendant’s account current, annexed to his answer, he adds, on the credit side, of the date of the 29th of September, 1808, when he had received information of Mr. Gray’s death, “By prem. on 2,000 dollars, Bryan and Baehr com. charged, they being to receive so much out of Mr. Gray’s com.”
The defendant, at that time, knew of the substitution. [178]*178and evidently approved of it. So, also, it appears, tháí shortly after the return of the Egeria, he told a witness that he had sold the pepper at a handsome profit, and which was to the advantage of the testator, or liis widow.
g. was enthIPowner of a ship cargó,aonsa an¿PwaJ toafoceive as a compensation of his services, two anda half per cent, on the proceeds of the outward cargo, and five per cent, or one twentieth of the nett profits of the voyage, on its termination. He fell sick, during the outward voyage, and left the ship, having appointed another supercargo in his place for the residue of the voyage, and agreed to pay him out of his own commissions. It was held, that the legal re - presentatives of tí., who died on his return home, were entitled to the full compensation stipulated, the ship having successfully performed the voyage, and whichproduced a large profit to M., and the substitute of G. having faithfully performed his duty, as supercargo.
The conduct of the testator, from the commencement of the voyage; until he was obliged to retire, from extreme sickness, was faithful and judicious, and the equity of the claim on the part of the plaintiff is striking and impressive. There was great confidence reposed in the supercargo, and an enlarged discretion given him by the instructions. He was recommended to govern himself at Calcutta, by information he might collect there,. as to the expediency of a voyage to Batavia. He was authorized to send the ship-even to Canton or Manilla, and was recommended to substitute Baehr for himself, as to such secondary voyage, and Baehr was very specially recommended to his attention and confidence. He was instructed to select another house, in the hands of which he was to place the outward cargo, in case he should find the house of Phelps, Page, Co. unsafe, and all disbursements by the captain or otherwise, were to be approved of by him, exclusively.
Under all this power and confidence, the supercargo acquitted himself with judgment and probity, and it was not the least evidence of it, that he should have'selected this very Mr. Baehr as one of the substitutes to whom he transferred his trust. Baehr and Bryan were appointed by him to act in his place, as supercargoes, and they accepted the duty, and promised to perform it, for a compensation to be paid by him out of his commissions. They did- perform trust, and to the approbation and benefit of the defemlant. It would appear to be unreasonable and unjust, [179]*179thai the defendant should receive these beneficial services of the testator and' his substitutes, gratis. The testator was prevented, by the act of God, from rendering all the services of the voyage in his proper person. I am aware that the common law was harsh on this point; bút I cannot believe there is any such principle either in the marine law, or in the law of this court.
The general rule of the common law is,' that if a contract be undertaken, and partly, but not entirely, performed, the party cannot recover his wages or hire, as for a partial performance of it, pro rata. (Countess of Plymouth v. Throgmorton, 1 Salk. 65.) Thus, in Cutter v. Powell, (6 Term Rep. 320.) the defendant gave a nbte, promising to pay the plaintiff’s intestate, 80 guineas, provided he proceeded, continued, and did his duty, as second mate in the ship, on a voyage from Kingston to Liverpool The intestate entered on the voyage, did part of the service, and died on the passage. It was held by the K. B. that the plaintiff was not entitled to recover either upon a quantum meruit, because the express contract did away all implied ones, or upon the express contract, because it was not fulfilled. The performance was a condition precedent, and it was an entire contract. But in this very case light breaks in from another quarter, to console us for the severity of the doctrine. If the party hired, wilfully or voluntarily abandons his contract, after a part performance, as in M'Millan v. Vanderlip, and Jennings v. Camp, (12 Johns. Rep. 165. 13 Johns. Rep. 94.) there is equity in denying him a rateable compensation; but we are speaking of cases in which the party was prevented from an entire performance, by the act of God; and in the cases cited from the Term Reports, the court admitted, that if the commercial usage had been to recover in such case rateably, that usage would have controlled their opinion. The old rule was, that if a servant agreed to re[180]*180ceive large wages, on condition of serving a whole yeaf, and he died in the middle of the year,, his representatives recovered nothing. But it was admitted, in that case, that they now recover proportionably, because the servant- is understood to be hired, with reference to the general understanding on this subject, which is, that he shall be enti- . tied to rateable wages, though he be disabled from serving the whole year.
In Chandler v. Grieves, (2 H. Black. 606. note.) it was certified to the C. B. to be the admiralty -usage, that if a seaman be disabled in the course of the voyage, he was entitled to wages for the whole voyage, though he had not performed the'whole. But,.Mr. Abbott, (Treatise on Shipping. p. 355, 356.) says, there is no general decision on the subject in our law books; and that in certain foreign ordinances, to which he refers,- it is not clear whether the payment of seamen’s wages,- on the death of a seamam during a voyage;-is to be understood of a sum proportionable to the time of his service,- or of the whole sum that would have been earned, if he had lived to the end of his voyage.
In Sims v. Adm. of Jackson, (1 Peters’ Adm. 157.) it was decided in the Circuit Court of the United States, for Pennsylvania, that full wages for the entire voyage were due to the representative of a seaman, hired for the whole voyage, at 30 dollars per month, and who died when it was only half performed. The decision was grounded on what was understood to be usage of the English Admiralty, and the decision in the laws of Oleron. But, afterwards, in Natterstrom v. Smith, (2 Hall’s L. Jour. 359.) the District Court of Massachusetts, after ah able and learned review of the marine law, dismissed a claim for wages of a- seaman beyond the time of his death, when the engagement was by-.the month.
These cases are not exactly analogous to the one before me, but my object is to show the spirit' and liberality of the marine law on the subject.
[181]*181Chirac, in his commentary on the Judgments of Oleron, Judgmcns d’ Oleron, art. 7.) mentions, that the Spaniards, in their West-India trade, had a custom, that if a seaman fell sick, he must provide a substitute or lose his wages; but that by the ordinances of Charles 5th, if a seamen died on the outward voyage, his representatives were entitled to a moiety, and if on the homeward voyage, to his entire wages; and he says, this was according to the Consolato del Mare. By the provisions of that celebrated Code, if a mariner died on his outward voyage, his heirs were entitled to a moiety of his wages, and if he had received all his wages before his death, his heirs were entitled to retain the whole. (Consulat de la Mer, par Boucher, ch. 129.) The ordinance of Lewis 14th, (art. 13. and 14. des Layers des Matelots, and Valin, Ibid.) makes the discrimination already alluded to, when a seamen dies, between an engagement by the month, and for the voyage, and gives only rateable wages in the first case, but entire wages in the latter, if he dies on the return voyage. There is another part of the 14th article of the ordinance, quite applicable, in principle, to the point before me. If the seaman engages for a proportion of freight or profit, his entire portion shall be recovered by his heirs, provided he died after the voyage was commenced. “And can it be just, that the seaman who dies shortly after the departure of the ship, and has rendered very little service, should take the same portion of the freight or profit that he would have been entitled to, if he had served out the voyage V’ To this question, Pothier answers du Louage des Matehts, No. 193.) that he would not have received but such a proportion of the freight or profits, as a compensation,' however inadequate, for his services, though accidents had prolonged the voyage for a great length of time, and it is therefore reasonable, that his heirs should receive the entire part when his term of service has been abridged by Ms death.
[182]*182If in addition to these liberal usages of the marine law, and which, I apprehend, are to be met with in the maritime law of all commercial nations, we attend to the special circumstances of this case, and consider that the entire services of the voyage have been rendered by the supercargo, and his agents, competently and discreetly selected by him; that they acted under his appointment, and looked to him exclusively for payment; that they conducted the voyage to a prosperous issue, by which a large profit was produced to the defendant; that he approved of their conduct, and never questioned either the necessity or wisdom of the substitution; and that he had since intimated that a commission was due, there can scarcely remain a doubt, ¡under all these considerations, that the plaintiff is entitled, ex mquo et bono, to the stipulated compensation.
But the plaintiff claims, not only the compensation mentioned in the instructions, but, also, the two and a half per cent, on the sales of the wine, in pursuance of the agreement of the 5tli of August, 1807, between Phelps, Page, Sf Co., and the testator. This agreement xvas according to the allowance contained in the first proposals of the defendant to Phelps, Page, 8? Co., of the 27th of December, 1806, and their answer of the 14th of February folloxving. It was an allowance which the defendant had procured for and in the name of the supercargo for the voyage in contemplation, and before he had selected the testator for that trust. It was, in the first instance, under his control, and for his benefit. He had a right to make such contract as he pleased, with the future supercargo, in respect to the compensation he was to receive ; and I am inclined to think that the testator could claim no more, or other compensation for his services, throughout the voyage, than what is specified in the instructions. The language of the instructions is veiy precise,t and the two and a half per cent, there allowed, must be understood as including all the commissions of the supercargo. Those [183]*183commissions were to arise Out of the proceeds oj the outloard cargo; and it is not to be supposed that a further commission of two and a half per cent, on the sales of the .outward cargo, was in contemplation. The silence of the instructions on that point, and their express and precise declaration of what was to be the nature and amount of the compensation, preclude any such inference.
G. being aonaVutant vo^ hissSmnceerto)m made on his life to the amount . of3000 pounds sterling, and ÜÍ. undertook to pay the premium and have the business completed, and his agent in London obtained a policy for that amount, and paid the premium for one year. M. afterwards alleging there was a mistake in the order, without the knowledge of G. procured the policy to be cancelled and the premium returned, and another policy to be executed for 450 pounds sterling. G. having died within one year, M was held to be responsible to his legal representative for the amount of the original policy, which had been so cancelled. , deducting the premium.
I am of opinion, therefore, on this point, that the defendant is entitled to the credit which he claims by his answer, of 1,230 dollars, as being part of the profits of the voyage.
2. The next point in the case is, whether the plaintiff • js entitled to recover the amount insured by the policy, cancelled by the defendant without authority.
There is some difference of opinion between the parties, as to the origin and motive of the insurance on the testator’s life.
The defendant says he was desirous of being indemnified for his advances on account of the testator, by an insurance on his life, as well as on his commissions; and that he, accordingly, suggested it to the testator, who acquiesced, and told the defendant, before he sailed, that he had applied for that purpose to the agent of the London Insurance Office. A witness, (James B. Murray,) present at the conversation between the defendant and the testator, says, the sum was not exactly fixed, but it was mentioned to be between % and 3,000 dollars; and that it was understood between them, that the testator teas to fix the sum at the agenfs office, and the defendant to pay the premium.
On the other hand, it is in proof by another witness, (George W. Murray,) tihat as a friend to the testator, he first
suggested to him a policy on his life, for the benefit of his [184]*184family, and he went with the testator to the agent’s office, where orders for the insurance were given. That he pro-raised the testator, the day he sailed, to see that the policy was completed, and to take care to hare the premium paid. That after the ship had sailed, he informed the defendant, that the testator had ordered an insurance on his life, to which the defendant replied, that he would write to his correspondents in London, that if the risk was taken, to complete the insurance according to the orders of the testator, and to pay the premium, provided the witness would agree to leave the policy in his hands.
The orders given by the testator are in proof, and the amount of the insurance was three thousand pounds, sterling, written at large, and repeatedly, by the testator. He declared, therein, his object to be, to secure to his wife and children, in the event of his death, a certain sum, and that when the terms were known, the agent of the office was to communicate with George W. Murray, who was authothorized by him. All this appears by the testimony of Charles Murray.
We cannot possibly be mistaken as to the great and leading motive of the testator, in procuring an insurance on his life, nor can we be mistaken as to the amount of the sum which he intended to insure. It is very clear, also, that when the defendant, afterwards, undertook to cancel this policy, on the ground of mistake in the sum intended by the testator, he assumed a fact which did not exist.
The defendant professed to act, throughout the whole transaction, under the impression that the testator had no other object in ordering the insurance, than the defendant’s indemnity for the advances which he might make. In this he was, also, mistaken. That indemnity might have had some influence with the testator, but his governing motive, according to his own solemn declarations, and according to the testimony of G. W. M., was of a higher, more pressing, and more interesting nature, since it was to secure [185]*185some provision for the future support of his wife and children. I think the conduct of the defendant shows very strongly, that the life insurance was not explicitly and precisely understood, at the time, to be solely or principally for his indemnity. On the first of July, (the day of the departure of the ship,) he writes to his London correspondents, to have insurance effected on the supercargo’s commissions, to secure his advances. Why omit at that time any mention of the other policy? The testimony of George W, Murray, shows, that it was after the testator had sailed; and when he mentioned to the defendant the orders which the testator had given, that the defendant proposed to take the business into his Own hands, and to pay the premium, provided he could have the policy as a security. He accordingly writes to Mullett 8f Co. on the 15th of July, that as a further' security, the testator had forwarded orders to insure his life, and he directs them to complete the business, and take the policy into their hands, and adjust the premium, and charge it to him.
The witness, George W. Murray, was under engagement to the testator to pay the premium; and this interference and assumption of the business, by the defendant, was voluntary, and to answer his own purpose. Having undertaken to do the business, in pursuance of the orders of the testator, in the stead of George W. Murray, he was bound to do it well and faithfully, according to those orders ; and having performed it, he was concluded and bound by the act of performance.
The orders of the testator were received and accepted at the London Pelican Office, and the insurance made, the policy delivered, and' the premium duly paid by the agents of the defendant, in pursuance of his letter of the 15th of July. All this is proved by the three witnesses, in London.
(Charles Murray, Jenkins Jones, and Frederick Mullett.) It became, then, a complete and executed contract. The [186]*186right was vested and fixed, and there was no error or mistake in the case.
The next part óf the history of this case relates to the' act of cancelling the policy, by the directions of the defendant.
The answer states, that on the 7th of November,■ and before any reply was received from his London correspondents, the defendant went, with George W. Murray, to the agent’s office in New-Fork, and there discovered that the' testator had insured his life/to the amount of 3,000 pounds, sterling; and that an answér, favourable to the application, had been received. He states, further, that not knowing that' the testator had any other object beyond the défendant’s indemnity, and deeming the premium high and considering it would be for the interest of the testator, he ordered' the insurance for 2,000 dollars only. It appears, also, by his letter to his correspondents,' of the 7th of November, that he ordered 450 poutids, sterling, to be insured, and drew for the premium, and directed them to hold that policy, and" the one on the comniissions, for him.
It is a little singular that in this letter, as well as in the" one to the plaintiff, of the 13th of November, the defendant was silent as to the amount of the insurance' in the orders of the testator, and which orders he knew had Been accepted. His answer does not pretend that the sum named by the testator was contrary to any contract or understanding between them, but only that, as the pre-" mium was high, and as he did not know that the testator had any object beyond the defendant’s interest, he thought it for'i/ie interest of the testator, to reduce the policy from' 3,0t)0 pounds, sterling, to 450 pounds, sterling.
He says that he did this with the advice of George W'.' Murray. Whether he did, or did not, is immaterial, for the' contract of- insurance had passed, at that time, beyond (lie power of recall, by either of them. But George W. Murray declares, that he gave him different advice. When [187]*187the defendant told him the sum was so large,- that hé was sure it was a mistake, and talked of cancelling the policy, the witness advised him to have reference to the original order of the testator, before he took any step.
But the defendant waited for no such reference, and he, afterwards, told the witness, that he had taken upon himself to cancel the policy.
It appears, that on the 17th of Novemberhe received the answer of his correspondents to his letter of the 15th of July, in which they state, that the testator had directed an insurance to 3,000 pounds, and that the office had accepted the risk, and that they had paid the premium; and charged it to him. Then follows his reply of the 19th of November, declaring that the policy for 3,000 pounds was a mistake, and must be returned in toto, and no further sum to continue than 450 pounds; and his letter; also, to the plaintiff, of the 10th of December, announces to her the mistake, and his conviction of it. This last letter to the plaintiff, shows that the defendant assumed a very bold and arbitrary controul over the policy of her husband, and without regard to any interest hut his own. He tells her, he understood that her husband only contemplated insuring 2,500 dollars, and that 2,000 dollars would cover his advances ; and that he took the liberty of acting as he thought best for the interest of her husband,- and had limited the sum to 2,000 dollars, and had directed the first policy to be cancel-led.
The policy was, accordingly, cancelled under his orders; and by his agents, Thomas Mullett & Co; and it was consented to be cancelled, and the premium returned by the Pelican Insurance Office, under the impression and belief communicated to them by the defendant, that the 3,000 pounds had really been mistaken for 3,000 dollars;- But if the mistake had existed, why did the defendant depart from the testator’s intention, and reduce the policy from 3,000 to 2,000 dollars? His interference with the con[188]*188tract of the testator, was not only without authority, but it appears to me to have been rash and unjust.
state that they had corrected the alleged mistake, and obtained the consent of the Insurance Office to cancel the 3,000 pounds policy. But they observe, by way of rebuke, that it was “rather singular” the defendant had never before mentioned “ the sum.” In the close of the correspondence on this point, by the letter of Thomas Mullett &/• Co. of the 22d of December, they
By this interference, on the part of the plaintiff, to procure the destruction of a valid and executed contract, I think he has substituted himself for the insurers, and is answerable to the plaintiff for the value of the original policy, after deducting the premium. The pretence of fraud in the testator, by representing himself as sound, when he was not sound, is an inadmissible defence. The answer of the defendant states, that the health of the testator was indifferent when he sailed, and the defendant doubted of his life; yet we hear of no scruple, or objection, on this ground, when the defendant was urging the testator to have his life insured, and when he was himself an assumed agent to effect it. If the health of the testator was sufficient for a policy to indemnify the defendant, it was ffisucient for a policy to provide for his own family. The defendant was, at least, duly apprized of the state of the testator’s health, and he, in the character of a substituted insurer, is bound by his own knowledge. But there is no sufficient evidence of the fact, that the testator was of an unsound constitution. The momentary indisposition and despondency mentioned by James B. Murray, is of no material consequence.
As to any supposed acquiescence on the part of the plaintiff, and binding on her, it is evident that she assumed the statements of the defendant to be correct. It is a well established, as well as a most reasonable principle, that to constitute a confirmation, the party confirming must be [189]*189fully apprized of his rights. (Cann v. Cann, 1 P. Wms. 732. Roche v. O’Brien, 1 Ball and B. 339.)
I shall, accordingly, decree, that a reference be made to a master, to take and state an account between the parties, and that in taking such account, the defendant be charged with the commission of two and a half per cent, and with the reasonable expenses and disbursments of the testator on the voyage, and with the five per cent, or one twentieth of the nett profits, according to the tenor of the allowance mentioned in the letter of instructions from the defendant to the testator. That the defendant be credited with the commissions of two and a half per cent, on the sales of the wine, to 1,230 dollars, and that these commissions be considered as constituting part of the nett profits of the voyage, at its termination. That the defendant be charged with the amount of the policy in the pleadings mentioned, for 3,000 pounds sterling, with interest thereon from the time that the knowledge of the testator’s death was received by the defendant, and be credited with the premium thereon, to 2541. 5s. That in stating the said account, no notice be taken of the subsequent policy which the defendant procured without authority. That the proofs already taken in the cause, be received as evidence before the master, and that the question of costs, and all further questions, be reserved, until the coming in of the report.
Decree accordingly.