This was an action of covenant, brought by the owner of the brig Susanna upon a charter party of affreightment, which after stating at full length and in the usual form, the freighting of the brig to the defendant for a voyage from Wilmington to Jamaica, and the delivery of the cargo there according to the bill of lading, proceeds thus: “Joshua Potts, hereby obligates himself, on delivery of said freighted cargo to his consignees at Kingston, and for and in consideration of services thus performed by the said owner, agent, or master of said brig, &c. the said freighter will one day after the total discharge of said cargo, pay or cause to be paid to the same at Kingston, the following rates of freight,” &c.
The question for the opinion of this Court was, whether the acts to be performed by the plaintiff, formed a condition precedent, according to the true construction of the charter party; and as such ought to be averred and proved, to entitle the plaintiff to a recovery.
The case was submitted without argument.
Seawell, J.
delivered the opinion of the Court.
We are all of opinion, that the plaintiff can maintain no action upon the charter party to recover the freight, without averring in his declaration, and proving on the trial, that he had carried the goods according to the terms of the covenant. And that, therefore, the rule for a new trial be discharged.