right delivery of the cargo according to the terms of the contract, and there has been no such delivery, there can be no recovery in an action on the contract. Liddard v. Lopes &c. 10 East 526; The Hiram, 3 Rob. Adm. Rep. 380; Scott v. Libby &c. 2 Johns. 336; Amroyd &c. v. Union Ins. Co. 3 Binn. 437; Mar. Ins. Co. v. United Ins. Co. 9 Johns. 186; Porter v. Andrews, 9 Id. 350; Callender &c. v. Ins. Co. 5 Binn. 525. The outward voyage may have been made, yet if by the contract the outward and inward voyage made one, and the right to freight depends on the entire performance, the capture of the vessel on her return-preventing the delivery of the return cargo-will defeat the claim to freight. Abb. on Ship. 265, 269; Barker v. Cheriot, 2 Johns. 352.

In a case before the court of king's bench, Lord Ellenborough laid down these as the principles to govern the action: "the ship owners undertake that they will carry the goods to the place of destination, unless prevented by the dangers of the seas, or other unavoidable casualties: and the freighter undertakes, that if the goods be delivered at the place of their destination he will pay the stipulated freight: but it was only in that event, viz. of their delivery at the place of destination that he, the freighter, engages to pay any thing. If the ship be disabled from completing her voyage, the ship owner may still entitle himself to the whole freight, by forwarding the goods by some other means to the place of destination; but he has no right to any freight if they be not so forwarded; unless the forwarding them be dispensed with, or unless there be some new bargain upon this subject. If the ship owner will not forward them, the freighter is entitled to them without paying any thing. One party, therefore, if he forward them, or be prevented or discharged from so doing, is entitled to his whole freight; and the other, if there be a refusal to forward them, is entitled to have them without paying any freight at all. The general property in the goods is in the freighter; the ship owner has no right to withhold the possession from him, unless he has either earned his freight, or is going on to earn it. If no freight be earned, and he decline proceeding to earn any, the freighter has a right to the possession." Hunter v. Prinsep, 10 East 394. In this case the captain's conduct in obtaining an order for selling the goods, and selling them accordingly, which was unnecessary, and which disabled him from forwarding the goods was in effect declining to proceed to earn any freight, and therefore entitled the plaintiff to the entire produce of his goods, without any allowance for freight.

If a seaman be

From the general rule of law-that the ship must perform her voyage to entitle the seamen to recover— -Lord Ellenborough was unwilling to make an exception even in a case where the voyage was abandoned because the ship was not sea-worthy. Eaken v. Thom, 5 Esp. 6. However it may be in that particular case, certain it is that the rule that the voyage must be performed is not universal. wrongfully discharged from the service his wages will still continue down to the termination of the voyage. Abb. on Ship. 434. So if the voyage after it is commenced be broken up by the act of the owner or master, the maritime ordinance of Louis XIV, (des Loyers des Matelots,) art. 3, provides that the seamen hired for the voyage shall be paid their entire wages for the voyage, and those hired by the month the wages due for the time they had served and for the time necessary to enable them to return to the port of departure. And the rule was supposed by Kent, C. J., not to be different in England, Abernethy v. Landale, Dougl. 539; 1 Molloy, p. 354 b. 2, c. 3, § 7; Malynes 105; or in the United States, Hoyt v. Wildfire, 3 Johns. 518. In Massachusetts the cases put by Molloy are understood to be of supposed contraventions of the municipal laws of the country where the contract is to be enforced. Oxnard v. Dean &c. 10 Mass. 143. In New York it is considered as a settled rule of maritime law that if the contract of hire be not fulfilled in consequence of the act of the master or owners, and not in consequence of the perils of the sea, capture by enemies, &c., the seamen are to be paid, at least for the time they are employed, and also for a reasonable time to be allowed for their return to the place of departure. Sullivan &c. v. Morgan, 11 Johns. 66. Judge Story decided on the same principle in Emerson v. Howland &c. 1 Mason 45.

Although in the case of a contract undertaken but not performed, the plaintiff may not be entitled in an action on that contract to recover wages or hire, as for a partial performance of it pro rata; yet under some circumstances he may recover upon an implied assumpsit. Luke &c. v. Lyde, 2 Burr. 882; Hooe &c. v. Mason &c. 1 Wash. 207; United Ins. Co. v. Lenox, 1 Johns. Cas. 382, 2 Id. 443; Leavenworth v. Delafield, 1 Caines's Rep. 574; Williams v. Smith, 2 Id. 13; Davy v. Hallett, 3 Id. 15; Dorr v. New England Mar. Ins. Co. 4 Mass. 231; Robinson v. Mar. Ins. Co. 2 Johns. 323; McBride v. Mar. Ins. Co. 7 Johns. 431.

In Luke v. Lyde, the assumpsit was implied from the acceptance of the goods by the defendant at the port into which they were carried. Le Blanc, J., 5 East 324. So in Christy

v. Row, 1 Taunt. 300, the voyage was intended to be to Hamburgh, and the vessel was prevented from going there; but having in the course of the voyage arrived at Cuxhaven, she then, at the request of the consignees, advanced to Gluckstadt and there delivered part of the cargo: for this part, freight was recovered. In such cases the acceptance of the goods short of the port of destination, is evidence of the implied contract, Lawrence, J., 7 T. R. 381; it is the very substance. of that contract, Ld. Ellenborough, 10 East 529. When there is no such acceptance, there is no foundation for a promise to pay pro rata itineris. Osgood v. Groning, 2 Camp. 466; Callender v. Ins. Co. 5 Binn. 533.

A like rule holds with respect to wages. In the case of The Saratoga, 2 Gall. 180, cited ante, p. 407, the mariners, with the consent of the master, came on board and did duty from the time of the restoration of the ship until their final discharge; it was considered there was then an implied contract to receive a reasonable recompense. Under the act of congress of February 28, 1803, c. 62, § 3, they recovered in addition, two months' wages. Emerson v. Howland &c. 1 Mason 48. A different view of that act was taken in Ogden v. Orr, 12 Johns. 143.

In the case of an endorsee of a bill of lading which specifies that the goods are to be delivered to the consignee or his assigns, he or they paying a certain sum for freight, it has been very much the practice for the endorsee to pay the specified freight if he accepts the goods under it. Verdicts have sometimes been rendered against him on the ground that having received the goods he is liable for what, by the terms of the bill of lading, is to be paid. Dobbin v. Thornton, 6 Esp. 16; Seggart v. Scott &c. Id. 22; Harman v. Clarke &c. 4 Camp. 159. But there is no authority for saying that under such circumstances there is a contract raised by law to pay the freight which another, viz: the consignor, has contracted with the ship owner to pay. The case of Cock v. Taylor, 13 East 399, merely decides that the receipt of the goods under the bill of lading is evidence of a new agreement. In Wilson v. Kymer, 1 M. & S. 157, the previous mode of carrying on the business between the parties was held to be evidence of the same nature; and it was left to the jury to consider whether they would imply a similar promise from former habits of dealing, by evidence of the defendant having, under the consignee's orders, obtained the goods and paid the freight. It is true, some of the judges, particularly Le Blanc, J. in Moorsom v. Kymer, 2 M. & S. 303, speak as if Cock v. Taylor had decided that the law would imply a promise. But this expression is inac

curate.

It is not the law that the obligation to pay freight is transferred with the goods to the endorsee, so as to make him indebted for the freight of goods which he has accepted. Sanders v. Vanzeller, 4 Adol. & El. N. S. 294, 45 Eng. Com. Law Rep. 294. When the bill of lading refers to the charter party, it may, in an action against the endorsee, be a question for the jury whether the cargo was not delivered up to the endorsee on the terms of his paying freight or demurrage. S. C.; Wegener v. Smith, 28 Eng. Law & Eq. 356. The freighter, however, who entered into the contract remains responsible upon it. Harrison &c. v. Spaith, Id. 132.

5. When a party contracts to do a certain work and voluntarily leaves it unfinished.

When there is a special contract by the terms of which the party stipulating to do the work is to receive nothing from the other until the former fulfils the contract, and there is on his part a failure to fulfil it-a failure arising not from inevitable accident, but from his own neglect in voluntarily leaving the work unfinished, it has been decided in Massachusetts that for the work done by him under the contract, he can maintain no action, either on the contract or on a quantum meruit. Faxon v. Mansfield &c. 2 Mass. 147. In like manner it is held in New York that a party who enters into a contract and performs part of it, and then, without cause, or the agreement or fault of the other party, but of his own mere volition, abandons the performance, cannot have an action, on an implied assumpsit, for the labour actually performed. Jennings v. Camp, 13 Johns. 94.

Unless there be some express stipulation to the contrary, whenever an entire sum is to be paid for the entire work, the performance or service is a condition precedent; being one consideration and one debt, it cannot be divided. Steam Packet Co. v. Sickles &c. 10 How. 440. And if the contract provide that no instalment shall be due unless the plaintiff deliver to the defendant, a certificate signed by the defendant's surveyor, that the work has been well performed according to the specifications and plans, such certificate is thereby made a condition precedent to the right to payment. Even if it is withheld by fraud, that is only the subject of a cross action. Milner v. Field, 5 W. H. & G. 829; 1 Eng. Law & Eq. 531.

6. Under what circumstances a party who has done work but not according to his agreement, may recover on a quantum meruit.

It has been laid down that if there be a special agreement and the work be done, but not in pursuance of it, the plaintiff may recover upon a quantum meruit, for otherwise he would not be able to recover at all, Bull. N. P. 139; Linningdale v. Livingston, 10 Johns. 36; Dubois v. Delaware & Hudson Canal Co. 4 Wend. 289. But he cannot recover where the contract being partly executed, there is a wilful dereliction of it, by him, without the assent and against the will of the other party, 13 Johns. 97; nor where the stipulations of the former estop him from claiming under a quantum meruit. Marshall v. Baltimore & Ohio Co., 16 How. 337.

Nevertheless, under some circumstances, a party may have no remedy under a deed or other special contract for work that he has done, and yet if the other party has accepted the work, and so had the full benefit of it, there may be a right to be paid on a quantum meruit, independently of the deed or special contract.

This was the case in Lucas v. Godwin, 3 Bing. N. C. 737, 32 Eng. Com. Law Rep. 312. The house, which was to have been completed on the 10th, was not completed till the 15th of October. By accepting the work, the defendant admitted it to be of some benefit to him, and the plaintiff to be entitled to some remuneration. If there was a condition as to time, the non-performance of that condition might preclude the plaintiff from recovering the stipulated price. But he was nevertheless held entitled to recover something in an action for work and labour.

Here, it should be observed, the defendant was an individual capable of making a new contract as he might think fit. It is otherwise in England, where the defendants are a corporate body-considered there incapable of contracting otherwise than by deed. On this subject, the doctrine laid down in the Mayor of Ludlow v. Charlton, 6 M. & W. 815, and subsequently acted on in Arnold v. Mayor of Poole, 4 Man. & Grang. 860, 43 Eng. Com. Law Rep. 860, and in Paine v. Strand Union, 8 Adol. & El. N. S. 338, 55 Eng. Com. Law Rep. 338, was adhered to in Lamprell v. Billericay Union, 3 W. H. & G. 305.