Shepley, C. J.
The suit is upon a sealed instrument. It is a commercial contract made, while the parties were ignorant of the exact condition of the property, and providing for a sale and purchase of part of a cargo of lumber shipped on a hazardous adventure from Gardiner to California.
The rights of the parties may depend upon its correct con[528]*528struction. The circumstances, under which it was made, as disclosed by the testimony, may be considered in connection with it to ascertain the intention. The vessel had been upon her voyage about five mo'nths.
The principal objections to a recovery by the plaintiff, made in a very elaborate argument for the defendant, will be examined: —
1. The first is, that the contract contains a warranty, that the plaintiff, at the time of its inception, was the owner of one eighth part of the cargo of boards shipped at Gardiner.
The intention of the parties is to be ascertained from an examination of the whole contract, and if one part, upon a literal construction, be found at variance with another part, the part, which contributes more essentially to the contract and becomes the more material, will be entitled to more consideration, than that, which is less so. The clause, which recites the proportion of cargo owned by the plaintiff, will be of less importance, if a sale of it was not made, while a sale of a part of it, as yet unascertained, was made.
By an examination of the contract it becomes quite apparent, that the intention was to purchase and sell such portion only of the cargo of lumber owned by the plaintiff, as should arrive in California. And that there was no intention to make the plaintiff warrant, that any particular portion, or that any portion, of it should arrive there.
While the contract recites in the present tense, that the plaintiff “ is owner of one eighth part of the cargo,” it also says “ now supposed to be on the way between Monte Yideo and California.” A small part of the cargo of lumber had before been sold at Monte Yideo in the month of October, 1849. A construction, which would make the plaintiff warrant, that no part of it had been used in the vessel or sold, would be almost as much at variance with its general tenor and spirit, as a construction would be, that no part of it should be lost by the perils of the sea.
The real intention appears to have been to state, what part the plaintiff then owned, if no occurrence had happened to [529]*529deprive him of it. This is discoverable from the use of the phrase “ now supposed to be on the way,” and from the sale of all the plaintiff’s “ right, title and interest in the said boards,” and not of one eighth part of them.
Upon this construction of the contract there will be no foundation for another objection, that the lumber sold never did arrive in California.
2. Another objection is, that the agreement is imperfect and cannot be enforced without extraneous aid; and that has not been and cannot be obtained or shown.
The particular defect pointed out is, that no port or place in California is named, where that part of the cargo sold should be discharged or delivered.
If it should in such case appear, that the vessel had been cleared for a particular port in that State, or that the master had signed bills of lading to deliver the cargo at a port named; or that he had been instructed to proceed to a certain port to unlade, and that this was known to the parties, these facts might be considered in connection with the contract to ascertain their intention. In the absence of all such proof it might be a fair conclusion, that the part sold was intended to be delivered at the port of general discharge of the cargo in that country. In this case such an inference is more clearly authorized from the language used in the contract providing for payment within a certain time after “ the arrival of the lumber at California, at the port of discharge,” without naming any particular port.
3. Another objection is, that the plaintiff has never performed on his part by delivering according to the contract that part of the cargo sold by him to the defendant.
The language of the contract having reference to this matter is, “the said Smith is to deliver the said lumber alongside at a reasonable time after its arrival. The said Davenport has the privilege of appointing an agent to receive and sell the said lumber and is to pay all expenses incident thereto.”
From the facts proved in the case and exhibited by the [530]*530contract it becomes apparent, that neither party was expected to be personally present to deliver or to receive the lumber. The cargo appears to have been consigned to the master for sale. He thereby became the agent of the persons interested in it. The defendant was under no obligation to appoint an agent to receive the lumber. He merely secured to himself the privilege of appointing one to take delivery of it and sell it. If he did not elect to appoint one, he must at the time of making the contract have understood, that some person was to receive and sell it for him.
Both parties understanding the probable position of the vessel o'n her voyage; the difficulty, if not the impossibility that would prevent their being personally present; the uncertainty, whether any communication could be made by post before the arrival of the vessel, while their contract provided for a delivery by some one to some one without any further acts performed by them, unless the defendant should elect to appoint an agent, must have contemplated, that the agency of the master and consignee would be continued. That he would be the agent for each party to perform the duty for each required by the contract. The same person might be agent for the seller to deliver and for the purchaser to receive. When thus agent for both parties he would be considered as acting for each in the performance of the duties required of each. While making a discharge of the cargo alongside he would be acting for the plaintiffi While there receiving it himself or by those employed to assist him he would be acting for the defendant.
The only rational conclusion is, that the parties intended, that he should be their agent to perform all their duties there, unless the defendant should elect to appoint one. There is no proof of such an election; and when the master as consignee took charge of the lumber as delivered from the vessel he must be considered as having done it for the defendant. The fact, that he had not been informed of the sale or change of ownership, and that he had thereby become the agent of another person can make no difference in this case. It is [531]*531not unusual, that a master of a vessel or a consignee of a cargo becomes without his knowledge agent for new owners by virtue of his character as master or consignee. His agency in such cases arises out of his being the agent for all persons interested. While the property is in his custody as agent the owners of it may be changed many times.
No severance of the eighth part from the other part of the lumber could have been contemplated without the appointment of an agent by the defendant or any communication made to the master, that there had been a. change of ownership.
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Shepley, C. J.
The suit is upon a sealed instrument. It is a commercial contract made, while the parties were ignorant of the exact condition of the property, and providing for a sale and purchase of part of a cargo of lumber shipped on a hazardous adventure from Gardiner to California.
The rights of the parties may depend upon its correct con[528]*528struction. The circumstances, under which it was made, as disclosed by the testimony, may be considered in connection with it to ascertain the intention. The vessel had been upon her voyage about five mo'nths.
The principal objections to a recovery by the plaintiff, made in a very elaborate argument for the defendant, will be examined: —
1. The first is, that the contract contains a warranty, that the plaintiff, at the time of its inception, was the owner of one eighth part of the cargo of boards shipped at Gardiner.
The intention of the parties is to be ascertained from an examination of the whole contract, and if one part, upon a literal construction, be found at variance with another part, the part, which contributes more essentially to the contract and becomes the more material, will be entitled to more consideration, than that, which is less so. The clause, which recites the proportion of cargo owned by the plaintiff, will be of less importance, if a sale of it was not made, while a sale of a part of it, as yet unascertained, was made.
By an examination of the contract it becomes quite apparent, that the intention was to purchase and sell such portion only of the cargo of lumber owned by the plaintiff, as should arrive in California. And that there was no intention to make the plaintiff warrant, that any particular portion, or that any portion, of it should arrive there.
While the contract recites in the present tense, that the plaintiff “ is owner of one eighth part of the cargo,” it also says “ now supposed to be on the way between Monte Yideo and California.” A small part of the cargo of lumber had before been sold at Monte Yideo in the month of October, 1849. A construction, which would make the plaintiff warrant, that no part of it had been used in the vessel or sold, would be almost as much at variance with its general tenor and spirit, as a construction would be, that no part of it should be lost by the perils of the sea.
The real intention appears to have been to state, what part the plaintiff then owned, if no occurrence had happened to [529]*529deprive him of it. This is discoverable from the use of the phrase “ now supposed to be on the way,” and from the sale of all the plaintiff’s “ right, title and interest in the said boards,” and not of one eighth part of them.
Upon this construction of the contract there will be no foundation for another objection, that the lumber sold never did arrive in California.
2. Another objection is, that the agreement is imperfect and cannot be enforced without extraneous aid; and that has not been and cannot be obtained or shown.
The particular defect pointed out is, that no port or place in California is named, where that part of the cargo sold should be discharged or delivered.
If it should in such case appear, that the vessel had been cleared for a particular port in that State, or that the master had signed bills of lading to deliver the cargo at a port named; or that he had been instructed to proceed to a certain port to unlade, and that this was known to the parties, these facts might be considered in connection with the contract to ascertain their intention. In the absence of all such proof it might be a fair conclusion, that the part sold was intended to be delivered at the port of general discharge of the cargo in that country. In this case such an inference is more clearly authorized from the language used in the contract providing for payment within a certain time after “ the arrival of the lumber at California, at the port of discharge,” without naming any particular port.
3. Another objection is, that the plaintiff has never performed on his part by delivering according to the contract that part of the cargo sold by him to the defendant.
The language of the contract having reference to this matter is, “the said Smith is to deliver the said lumber alongside at a reasonable time after its arrival. The said Davenport has the privilege of appointing an agent to receive and sell the said lumber and is to pay all expenses incident thereto.”
From the facts proved in the case and exhibited by the [530]*530contract it becomes apparent, that neither party was expected to be personally present to deliver or to receive the lumber. The cargo appears to have been consigned to the master for sale. He thereby became the agent of the persons interested in it. The defendant was under no obligation to appoint an agent to receive the lumber. He merely secured to himself the privilege of appointing one to take delivery of it and sell it. If he did not elect to appoint one, he must at the time of making the contract have understood, that some person was to receive and sell it for him.
Both parties understanding the probable position of the vessel o'n her voyage; the difficulty, if not the impossibility that would prevent their being personally present; the uncertainty, whether any communication could be made by post before the arrival of the vessel, while their contract provided for a delivery by some one to some one without any further acts performed by them, unless the defendant should elect to appoint an agent, must have contemplated, that the agency of the master and consignee would be continued. That he would be the agent for each party to perform the duty for each required by the contract. The same person might be agent for the seller to deliver and for the purchaser to receive. When thus agent for both parties he would be considered as acting for each in the performance of the duties required of each. While making a discharge of the cargo alongside he would be acting for the plaintiffi While there receiving it himself or by those employed to assist him he would be acting for the defendant.
The only rational conclusion is, that the parties intended, that he should be their agent to perform all their duties there, unless the defendant should elect to appoint one. There is no proof of such an election; and when the master as consignee took charge of the lumber as delivered from the vessel he must be considered as having done it for the defendant. The fact, that he had not been informed of the sale or change of ownership, and that he had thereby become the agent of another person can make no difference in this case. It is [531]*531not unusual, that a master of a vessel or a consignee of a cargo becomes without his knowledge agent for new owners by virtue of his character as master or consignee. His agency in such cases arises out of his being the agent for all persons interested. While the property is in his custody as agent the owners of it may be changed many times.
No severance of the eighth part from the other part of the lumber could have been contemplated without the appointment of an agent by the defendant or any communication made to the master, that there had been a. change of ownership. There is no difficulty or inconsistency in coming to a conclusion, that the intention of the parties as well as their duties were and would have been different, if the defendant had elected to do it and had appointed an agent to receive and sell his lumber.
The intention appears to have been to permit the master and consignee to continue to act as the agent of all parties and to do the duties incumbent upon each, unless the defendant should appoint his own agent, and in such case to have him take the delivery of the share purchased as separated from the remainder and dispose of it according to his own instructions.
The only delivery contemplated by the parties, unless the defendant should appoint an agent to receive it, having taken place, the plaintiff must be considered with respect to a delivery as having performed the contract on his part.
4. A further objection is made, that the arrival and delivery of the lumber had not been ascertained before the suit was commenced.
The provision of the contract is, that the defendant “ is to give his note in payment of said lumber as soon as its arrival and delivery can be ascertained.”
The parties must have expected, that these facts would be ascertained in the usual course of mercantile business.
It would become the duty of the master and consignee to communicate to his known principals, what he had done for them. His letter bearing date on May 29, 1850, addressed [532]*532to the plaintiff and communicating the facts of the arrival and disposition of the lumber was placed in the hands of the defendant several weeks before the commenc'ement of the suit.
The day of its arrival was not stated. The obligation to give a note was not made to depend upon the ascertainment of the day or time but upon the fact of its arrival. It might have been given on the ascertainment of the fact of its arrival and delivery, payable in six months from the date or time of the arrival of the lumber at California, leaving the time of payment to be subsequently ascertained. Although the defendant was informed on July 16, 1850, of the day, when the plaintiff alleged, that it had arrived, that did not prove, that it had arrived on that day. The contract did not impose upon the plaintiff the duty to ascertain and make known to the defendant the date of its arrival. The suit was not commenced, until many months had elapsed after the defendant had been informed of the day of its alleged arrival.
The defendant must be held liable to pay according to the terms of his contract for so much of the cargo of lumber as the plaintiff owned and caused to be delivered from the vessel in California. Defendant defaulted.
Tenney, Howard, Rice and Appleton, J. J., concurred.