Tilghman C. J.
This is an action of covenant on a charter party, by which the defendant, as agent of the owners of the ship Diana, let the hold of the said ship on freight to the [234]*234plaintiffs on a voyage from New York to Amboy in the state of New Jersey, thence to Varel and Bremen in Europe, and thence back to New. York. On the trial at Nisi Prius several Poiuts of law were reserved, which are now to be decided.
1. The first question is whether a copy of the charter party was properly admitted as evid'ence. There was no doubt of the copy being well proved, for it was sworn to by one who had compared it with the original, the subscribing witnesses being dead. The only point then is, whether this was a case in which a copy could be admitted at all. The rule is, that before a copy can be received, you must prove the existence and loss, or destruction of the original.. About the existence, of the original there was no dispute. Its destruction, was not alleged. But as to its loss there was strong evidence. It was proved that the original had been sent from New York by Le Roy and Sons to their agent Mr. George Harrison of Philadelphia. Mr. Harrison delivered. it to Mr. Ingersoll to bring suit on, and Mr. Ingersoll believes that it was lost at the time of his removing his papers from one house to another in this city. When the declaration was first filed in this cause, it contained a pvofert of the charter party} but after the loss was discovered, a new decla-.ration was filed in which the loss is alleged. The principal objection to the evidence, is that the oath of the plaintiffs was not taken to prove that the original was not in their possession} but I take this to be unnecessary, because the paper was traced from their hands to the hands of Mr. Ingersoll. The evidence of loss after it came to Mr. Inget.soW’s hands is satisfactory, so that the plaintiffs were let in to the production of the copy.
..>;2,.The second point.is on the articles of charter party, the defendant contending that he is not liable to an action, because he contracted only in the capacity of an agent. Where one contracts as an agent, and it is understood that the principal only is to be looked to, the agent is not liable to an action. This has been decided in the case of agents contracting on behalf of the British government, and that of the United States. 1 Term Reports 674. Hodgson v. Dexter. 1 Branch. 345. The reason is plain. To make the agent liable against the intent of the parties,, would be a violation of the contract. It is to be examined, then, what .was the intent [235]*235of the parties to be collected from this charter party. Most of the covenants on the part of the defendant, are expressed to be made by him as agent for the owners of the ship. But towards the conclusion, for the performance of all the covenants before mentioned, the parties bind themselves to each other respectively, and the vessel her tackle and apparel are bound"-for the due performance of her owners and agents or agent to the said G. and T. Meyer. Who are these parties thén that thus bind themselves? The owners of the ship are no where named as parties, nor are they even named at all in any part of the instrument; nor does the defendant sign as agent or attorney, but in his own name. It appears too, that this difference between signing in one’s own name and as attorney was well understood, because George Meyer signs first for himself, and then as attorney for T. Meyer. It is no uncommon thing for an agent to bind himself personally, looking to his principal for indemnity; and indeed when the principal lives at a distance, as in the present case, it is no more than a just caution in the other party to ask Security at home. Considering the whole of this instrument, I think it was intended that the defendant was to be looked to, and therefore he is responsible.
3. The next question is whether damages can be recovered in this action, on account of the loss sustained by Jacob Le Roy and Sons, who were owners of the cargo? That the defendant ought to be answerable in some form of action, for all damages sustained by the cargo, is without doubt; and" I can see no objection to the recovery of the whole in this action. The defendant will not be liable to Le Roy and Sons in another action, because it is entered on the recoi-d, that this action is for their use. It was intended that there should be a remedy for all damages by action on the charter party; •but that cannot be, unless the whole is now recovered, because there cannot be two actions on it. The plaintiffs are trustees, for the purpose of permitting their names to be used for the benefit of Le Roy and Sons in this action. No injury is thereby offered to the defendant, justice is done to all parties, and no form of law is violated. The damage sustained by Le Roy and Sons may, theréfore, be taken into consideration in the suit. - -
4. We are next- to consider, whether -the charter party [236]*236extends to the goods stowed in the cabin. The defendant denies that it relates to any thing out of the hold. The objection deserves no favour. It savours too much of the summum jus. It was from the defendant himself, that these goods were purchased after they were in the cabin. Could it have been intended then that they should be unprotected by the charter party? It seems there had been some difference of opinion about the meaning of the word hold, used in the charter party. Pending this difference, the defendant put his goods in the cabin, but finally the matter was adjusted by the defendant selling the goods. I am for taking the construction put upon the instrument by the parties themselves, and it seems they construed it so as to include the goods put in every part of the ship; this is very clear, because no extra freight was demanded for what was put in the cabin, and the bill of lading expresses that freight is to be paid according to the charter party. The whole therefore is to be included in the charter party.
5. The fifth and last objection is, to the recovery of damages to the amount of the -whole injury sustained, because the plaintiffs had recovered satisfaction for part from the underwriters in Baltimore. We must now take for granted, that the jury have decided that the ship was not seaworthy, and therefore the money paid by the Baltimore underwriters, may be recovered back as having been paid by mistake. Supposing the unseaworthiness to be granted, it would follow that restitution must be made, and therefore there should be no deduction from the full damages in this case, because what one is bound both by conscience and law to do, may be considered as done. But the defendant denies the want of seaworthiness, and therefore he has a right to a trial; he has a right to it, because the plaintiffs being in possession, may retain the money until recovered from them by law, and the defendant having given notice that in his opinion the ship was seaworthy, and that he desires that question to be decided by an action, it would be unjust that he upon whom the loss is to fall, should be refused a trial.
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Tilghman C. J.
This is an action of covenant on a charter party, by which the defendant, as agent of the owners of the ship Diana, let the hold of the said ship on freight to the [234]*234plaintiffs on a voyage from New York to Amboy in the state of New Jersey, thence to Varel and Bremen in Europe, and thence back to New. York. On the trial at Nisi Prius several Poiuts of law were reserved, which are now to be decided.
1. The first question is whether a copy of the charter party was properly admitted as evid'ence. There was no doubt of the copy being well proved, for it was sworn to by one who had compared it with the original, the subscribing witnesses being dead. The only point then is, whether this was a case in which a copy could be admitted at all. The rule is, that before a copy can be received, you must prove the existence and loss, or destruction of the original.. About the existence, of the original there was no dispute. Its destruction, was not alleged. But as to its loss there was strong evidence. It was proved that the original had been sent from New York by Le Roy and Sons to their agent Mr. George Harrison of Philadelphia. Mr. Harrison delivered. it to Mr. Ingersoll to bring suit on, and Mr. Ingersoll believes that it was lost at the time of his removing his papers from one house to another in this city. When the declaration was first filed in this cause, it contained a pvofert of the charter party} but after the loss was discovered, a new decla-.ration was filed in which the loss is alleged. The principal objection to the evidence, is that the oath of the plaintiffs was not taken to prove that the original was not in their possession} but I take this to be unnecessary, because the paper was traced from their hands to the hands of Mr. Ingersoll. The evidence of loss after it came to Mr. Inget.soW’s hands is satisfactory, so that the plaintiffs were let in to the production of the copy.
..>;2,.The second point.is on the articles of charter party, the defendant contending that he is not liable to an action, because he contracted only in the capacity of an agent. Where one contracts as an agent, and it is understood that the principal only is to be looked to, the agent is not liable to an action. This has been decided in the case of agents contracting on behalf of the British government, and that of the United States. 1 Term Reports 674. Hodgson v. Dexter. 1 Branch. 345. The reason is plain. To make the agent liable against the intent of the parties,, would be a violation of the contract. It is to be examined, then, what .was the intent [235]*235of the parties to be collected from this charter party. Most of the covenants on the part of the defendant, are expressed to be made by him as agent for the owners of the ship. But towards the conclusion, for the performance of all the covenants before mentioned, the parties bind themselves to each other respectively, and the vessel her tackle and apparel are bound"-for the due performance of her owners and agents or agent to the said G. and T. Meyer. Who are these parties thén that thus bind themselves? The owners of the ship are no where named as parties, nor are they even named at all in any part of the instrument; nor does the defendant sign as agent or attorney, but in his own name. It appears too, that this difference between signing in one’s own name and as attorney was well understood, because George Meyer signs first for himself, and then as attorney for T. Meyer. It is no uncommon thing for an agent to bind himself personally, looking to his principal for indemnity; and indeed when the principal lives at a distance, as in the present case, it is no more than a just caution in the other party to ask Security at home. Considering the whole of this instrument, I think it was intended that the defendant was to be looked to, and therefore he is responsible.
3. The next question is whether damages can be recovered in this action, on account of the loss sustained by Jacob Le Roy and Sons, who were owners of the cargo? That the defendant ought to be answerable in some form of action, for all damages sustained by the cargo, is without doubt; and" I can see no objection to the recovery of the whole in this action. The defendant will not be liable to Le Roy and Sons in another action, because it is entered on the recoi-d, that this action is for their use. It was intended that there should be a remedy for all damages by action on the charter party; •but that cannot be, unless the whole is now recovered, because there cannot be two actions on it. The plaintiffs are trustees, for the purpose of permitting their names to be used for the benefit of Le Roy and Sons in this action. No injury is thereby offered to the defendant, justice is done to all parties, and no form of law is violated. The damage sustained by Le Roy and Sons may, theréfore, be taken into consideration in the suit. - -
4. We are next- to consider, whether -the charter party [236]*236extends to the goods stowed in the cabin. The defendant denies that it relates to any thing out of the hold. The objection deserves no favour. It savours too much of the summum jus. It was from the defendant himself, that these goods were purchased after they were in the cabin. Could it have been intended then that they should be unprotected by the charter party? It seems there had been some difference of opinion about the meaning of the word hold, used in the charter party. Pending this difference, the defendant put his goods in the cabin, but finally the matter was adjusted by the defendant selling the goods. I am for taking the construction put upon the instrument by the parties themselves, and it seems they construed it so as to include the goods put in every part of the ship; this is very clear, because no extra freight was demanded for what was put in the cabin, and the bill of lading expresses that freight is to be paid according to the charter party. The whole therefore is to be included in the charter party.
5. The fifth and last objection is, to the recovery of damages to the amount of the -whole injury sustained, because the plaintiffs had recovered satisfaction for part from the underwriters in Baltimore. We must now take for granted, that the jury have decided that the ship was not seaworthy, and therefore the money paid by the Baltimore underwriters, may be recovered back as having been paid by mistake. Supposing the unseaworthiness to be granted, it would follow that restitution must be made, and therefore there should be no deduction from the full damages in this case, because what one is bound both by conscience and law to do, may be considered as done. But the defendant denies the want of seaworthiness, and therefore he has a right to a trial; he has a right to it, because the plaintiffs being in possession, may retain the money until recovered from them by law, and the defendant having given notice that in his opinion the ship was seaworthy, and that he desires that question to be decided by an action, it would be unjust that he upon whom the loss is to fall, should be refused a trial. If therefore the entry of judgment in this verdict, would have the effect of debarring the defendant of so reasonable a' claim, I should be for setting it aside. But this is not the case. The plaintiffs offer to release the amount of what was paid by [237]*237the underwriters, upon receiving an indemnification from the defendant; or they , offer, if the defendant pays them the whole amount of the Verdict, to repay him the amount received from the underwriters, if the underwriters fail in their suit for restitution. The defendant may secure himself by taking his choice of this alternative. I am therefore of opinion that this being done, judgment should be entered for the plaintiffs.
Ye ates J.
The settled rule of Jaw is, that previous to a party’s being permitted to give secondary\evidence of the contents' of a written instrument, he must give satisfactory proof to the judge that such instrument once existed and is destroyed or lost. No effort should be remitted, which may induce a reasonable presumption that upon further enquiry the original might be obtained.
In the present instance, the existence of the charter party on which this suit is brought, is fully established by the affirmation of the defendant himself, taken under a commission in another cause between other parties, wherein the seaworthiness of the ship Diana, during the voyage for which she had been chartered, came in , question. George Meyer, one of the plaintiffs, declared on oath in open court, that he had forwarded from New York to Mr. George Harrison., his agent here, the original charter party which had been executed by the defendant, together with other papers in this action; and Mr. Harrison swore, that he delivered the identical papers to Jared Ingersoll esquire, one of the plaintiffs’ counsel, having first taken a list of them in the envelope which is still preserved, wherein the charter paper is marked No. 2. Mr. Ingersoll swore that he received those papers from Mr. Harrison on the 26th of March 1807, and afterwards delivered the charter party to Mr. Samuel Badger, a young gentleman who studied the law in his office, in order to draw a declaration thereupon, which was afterwards filed on the 17th of August 1809; that the most diligent search had been made for the charter party in his office, and from its not being found amongst his papers, he concluded that the same had been lost in the removal from his former residence in the city on the 17th of March 1812. Mr. Badger confirmed this statement, and swore that the declaration Was [238]*238in bis handwriting, which he had drawn from the original charter party. Added to this, proof was given that both the subscribing witnesses to the charter patty Were dead at the time of the trial. Under these circumstances, I think it perfectly correct to admit the proof of the contents to be given in evidence, which was a copy of the instrument testified by the defendant himself to have been compared with the original to serve as evidence in another cause*
It would seem to me to be a work of supererogation to have examined Theodore Meyer, the other plaintiff, or Jacob Le Roy and Sons, to the loss of the original charter party. So far from there being the slightest probability, that this paper had come to the hands of either of those persons, the proof adduced expressly destroys such presumption; because the paper has been traced by ample proof into the hands of Mr. Ingersoll, and it is not pretended or suggested that he delivered it over to his clients. If however the defendant had deemed it beneficial to his interest to have examined either of those gentlemen, as to the loss of the original charter party, he had it in his power so to do; because the second declaration averring the loss thereof, was actually filed nearly five months before the trial took place.
It has been strenuously contended by the defendant’s counsel, that this charter party does not charge the defendant with individual responsibility. On this part of the case I feel no difficulty whatsoever. I fully agree that the liability of the defendant is to be collected from a fair construction. of the whole instrument, and that the intention of die contracting parties must govern our decision. I also admit that he did not let the ship to freight as owner; but it will not be denied, that although he acted for others in this instance, he might bind himself individually. M;y judgment is not formed on the technical operation of the defendant’s seal; though it cannot escape observation, that George Meyer has sealed the paper as well for himself as attorney fox' Theodore Meyer, and the defendant immediately after-wards subscribed the same .without adding his representative character. This case is distinguishable from Hodgson v. Dexter in several important particulars. There the official character of the defendant was stated in the description of the parties. The tenement was let to the said Samuel Dexter [239]*239and his successors, to have and to hold the same to him and his successors. The covenant for quiet enjoyment during the term is with the said Samuel Dexter and his successors, and is that they as well as he shall enjoy; and the covenant on which the suit was brought was for himself and his successors. The Court there say, that under such circumstances, the intent of the officer to bind himself personally must be very apparent indeed, to induce such- a construction of the contract. In our ease it is true that the. defendant is styled agent for and in hehalf of the American ship Diana, Samuel' Holmes, of Wiscasset, and the covenants made by him are said to be as agent; but the freight of 1500/. sterling and demurrage are made payable to the defendant or his order, and in no part of the charter party are the names of the owners introduced. The last covenant is in these words;* “ For the -true and faithful performance of all and “singular the agreements and covenants-herein before contained on the part of said parties respectively, they bind “ themselves personally each to the other, and their heirs, “executors, administrators and assigns each to the other “ &c.” That the pláintiffs were bound jointly and severally ■to the defendant, there cannot be the shadow of a doubt. What then is the effect of this clause as to the defendant? We are .not at liberty to reject any expression which the contracting parties have made use of. Is it not the plain and obvious meaning of the words cited, that the defendant bound himself in his individual capacity, stripped and separated from his representative character? And will not a different construction render the adverb personally, as applied to the defendant, wholly inoperative? To my mind the conviction is irresistible, that the defendant became personally responsible for all breaches of the charter party committed or suffered by himself, the owners of the ship, or their captain. We may naturally suppose that in such a case the plaintiffs' would prefer a remedy against a person living in the same city with themselves, to a resort for redress to the judicial tribunals of the province of Maine; and it is no answer -to the observations I have made, to say that the law would afford a remedy to them against the owners of the vessel upon the captain’s bill of lading.,
It has been further objected, that the plaintiffs are entitled [240]*240to recover only such damages as they themselves have re- . ceived, the contract having been made with them alone, and LeRoy and Sons not being mentioned thereinyand that at all events the defendant was not answerable for the coffee ' stowed in the cabin, which was afterwards thrown into the sea. The time when Le Roy and Sons embarked in this concern, does not appear precisely from the evidence; but most probably it was from an early period of the meditated voyage. They purchased from the defendant the coffee which he had procured to be stowed in the cabin, and paid the captain 200 dollars for his privilege therein. They appear to have been jointly interested with the plaintiffs in the whole shipment, and the bill of lading signed by captain Holmes, treats all the cargo as a joint concern, and the freight thereof to be paid as p'er charter party. We cannot suppose with any degree of plausibility that mere strangers could have any claim to interpose in the projected voyage to Varel and Bremen; but must presume that the whole of the expected profits should be confined exclusively to the plaintiffs and those coming in under them. The defendant’s, sale of his coffee to Le Roy and Sons, and the general bill of lading of the captain referring to the charter party, adopt them as principals in the first contract, which cannot now be retracted.
The cabin and hold are certainly distinct portions of a ship; but a part may under some circumstances be used as referring to the whole, without any violation of language. Here if a misunderstanding prevailed between the parties in the first instance about the cabin, it was settled by an amicable accommodation, and the adverse claim of every person interested therein was removed. But if e.ven the original contract and subsequent agreement should be deemed inoperative to secure the cabin to the plaintiffs, whose fault was it that the coffee was permitted to remain there? Unquestionably of the captain, who in such case should, have shifted the coffee into the hold of the ship. The plaintiffs. ought not to sustain a damage by the misconduct of an agent over whom they had no control.
, The only question remaining to be considered, is whether the verdict is not given for too large a sum? In other words, whether the defendant ought not to have been allowed credit [241]*241.for the monies admitted to have been paid to the plaintiffs, by the underwriters on the policies effected on the cargo in New York and Baltimore? Serious difficulties attend this point on either side, and it is evident that injustice will be done, unless the Court interpose their summary powers. The recovery here is founded, on the defendant’s warranty ©f the seaworthiness of the ship, which the verdict of the jury affirms to have been broken; but in such cases the losses voluntarily settled by the underwriters, may be recovered back as* payments made by mistake. It is perfectly clear that the plaintiffs are not entitled to a double compensation for their damages, and it is equally clear that in case of the, money being recovered back, they could maintain no new suit against the defendant on this charter party. Against the defendant the underwriters have ho cause of action; but the defendant should be at liberty to contest the seaworthiness of the ship with those underwriters, if they should choose to do so. The plaintiffs’ counsel have offered to give the defendant credit for the sums they have received, provided he will indemnify them against all future claims by those underwriters. This seems to me to reach the justice-of this case, and, subject to that restriction and modification, I am of opinion that the judgment should be rendered fdr the plaintiffs.
Brackenridge J» concurred.
Judgment for plaintiffs»-