Constable v. Clovery, 1 N.C. 49, 1 Mart. 49 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 49, 1 Mart. 49

Constable vs. Clovery.

Trin. 2 Car.

COVENANT, viz. the plaintiff freighted his vessel to the defendant, and by a charter party indented, he covenanted with the defendant and A. that his vessel would fail with the first fair wind for Cadiz. And the defendant and A. jointly and severally covenanted with the plaintiff that if the vessel should go the intended voyage, and return to the Downs, he should have from them, so much for the freight; but in case she went to Amsterdam, they would pay him so much more. He alledges *that the vessel went to Cadiz and returned to the Downs, and the defendant did not pay the sum agreed upon for freight, primage, &c.

The defendant pleaded a special plea; and traversed absque hoc that the vessel sailed with the first wind; and the plaintiff demurred, and the defendant joined.

Stone. It is not a good traverse. For the substance of the covenant is, that the vessel shall go, and not that she shall sail with the first wind; which may vary and change every hour, and this construction is supported by the covenant, which is to give him so much for the freight, that is to say, for the voyage, and not to sail with the first wind. Ughtreed’s case. 7 Rep. 3 H. 3. 33. 48 E. 3. 34. A man covenanted to go to the war, with another, and the other covenanted to give him so much therefor. Covenant lies, and the man may have his action, whether he goes to the war, or not, at his election.

And per C ur. the first point was held bad, but

Jones, J. said, that if the defendant had covenanted that if the plaintiff would go to Cadiz with the first fair wind, he would pay &c. there the plaintiff ought to aver that he went with the first wind.

Doderidge, J. The wind is uncertain: therefore it cannot be the substance of the covenant.

2. The plaintiff declares that by indenture between the plaintiff and defendant, it was covenanted &c. and on oyer there were three parties, the defendant, A. and B. This is bad. Fitz. Executors 80. 15 E. 3. If two be bound and one of them dies, in an action against the survivor, the plaintiff ought to aver the death of the other in his declaration, which Jones, J. assented to.

3. The covenant is to pay primage &c. and it is averred that he did not pay it: but he ought to have averred in declaration, what the primage is: for it is uncertain.

Doderidge, J. and Jones, J.

It is according to the covenant, and it is well—

4. The covenant is by three jointly and severally, that they pay, and the breach is assigned that the defendant did not pay; he ought to have gone farther and say, nor any of the others.

Curia. The distinction is, that when the action is brought against all, the non payment of all shall be alledged. But where the suit is against one only, it is sufficient to say, that he did not pay. And if any one has paid, it is proper for the defendant to plead it. It is the same when two are bound jointly and severally; in a suit against one, it is sufficient to say he did not pay otherwise when against both.

And Davenport (the King’s attorney) took another exception. There the declaration is, that it was covenanted inter partes predictus, per indenturam fact, tali die: but he does not say that it was covenanted, *agreed, or witnessed that he would sail with the first wind.

And, after argument, it was adjudged for the plaintiff. Antea, p. 12. Poph. 161. Bendl. 146. Noy 75. Palm. 397.