Emery v. Dunbar
New York Court of Common Pleas
Appeal by the defendants from an order entered at Special Term, that judgment be entered on plaintiff’s demurrer to the answer. The facts, as admitted • by the pleadings, were these.
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Appeal by the defendants from an order entered at Special Term, that judgment be entered on plaintiff’s demurrer to the answer. The facts, as admitted • by the pleadings, were these. The plaintiffs shipped and delivered, and the defendants received, certain goods on board the ship Commonwealth, belonging to the defendants, and lying at the city and port of New York— the defendants delivering to the plaintiff bills of lading, by wliich the defendants agreed to deliver the said goods at the port of San Francisco, in good order and condition, the damages of the seas only excepted, to the…
1Opinion of the Court
By the Court.
Daly, E. J.
It is a well settled rule of law that if freight is paid in advance,and in consequence of the capture or shipwreck of the vessel, or other cause beyond the control of the master or owners, the goods are not carried to the place of destination, the freight is not earned, and may be recovered back, unless a special agreement was made to the *411contrary. This was expressly adjudged to be the law in Watson y. Duykinck (3 Johns. R., 337). It is shown by a passage in Cleirac to have been a prevailing maritime rule when that work was published in 1671; Les Us et Coutumes de la…
2Cases cited2 opinions
- Rankin v. American InsuranceThe Superior Court of New York City · 1829
- Phelps v. WilliamsonThe Superior Court of New York City · 1852
3Cited by1 opinion
- De Sola v. PomaresDistrict Court, S.D. New York · 1902