[*633

speed, sail and proceed to Cronstadt, or so near thereto as she might safely get, and then, at Cronstadt aforesaid, load from the factors of defendant a full and complete cargo of tallow, or of tallow and deals and battens, the quantity of battens not to exceed, &c. ; the quantity of tallow not to be less than 300 casks; and, should the remainder of the cargo consist of deals, the ship to be provided with a deck-load at defendant's risk and expense, which defendant was bound to ship, not exceeding what she could reasonably stow and carry over and above her tackle, apparel, provisions, and furniture: and, *being so loaded, should therewith proceed to London, Hull, or Newcastle, or so near thereunto as she might safely get, and should deliver the same cargo on being paid freight as follows (specifying the rates of freight): the act of God, the Queen's enemies, &c., excepted; the freight to be paid on unloading and right delivery of the cargo. And it was mutually agreed by and between the said parties that thirty running days should be allowed to defendant (if the ship should not be sooner despatched) for loading the ship at Cronstadt and delivering in London aforesaid, and that the ship should be addressed to the defendant's agents at St. Petersburg, in the said charter-party styled, &c.; and that it should be lawful for the freighters or their agents to retain and keep the said vessel ten days on demurrage over and above the said laying days, at 47. per day; that the penalty for non-performance of the said agreement should be 5007.; and that, if the ship should proceed to London, she should be reported at the Custom House there by Josiah Elias Denham and James Smith. Which charter-party being so made afterwards, to wit, on, &c., in consideration thereof, &c.; mutual promises to perform and fulfil in all things, &c. Averment that the ship, being tight, &c., did afterwards, to wit, on 18th August, 1847, in pursuance of the charter-party, with all convenient speed sail and proceed to, and arrive at, Cronstadt aforesaid, and, having so arrived, did there remain, and was by defendants, under and by virtue of the said charter-party, then at Cronstadt aforesaid kept thenceforth for and during and until the end of the said thirty running days, and thenceforth during and to the end of a part, to wit, eight, of the said ten days during which the said ship was so as aforesaid allowed to be kept on *demurrage and that, in a reasonable time in that behalf after [*634 the said ship arrived at Cronstadt, and with all convenient speed in that behalf, and while the said ship was so as aforesaid at Cronstadt, to wit, on, &c., the said ship then being tight, &c., and every way fitted for the said voyage from Cronstradt aforesaid, the plaintiffs were ready and willing to receive and take on board the said ship, at Cronstadt aforesaid, such full and complete cargo as aforesaid, not exceeding what the said ship could reasonably stow, &c., and in all respects to perform, &c., the said charter-party, and continued so ready and willing from thence during all the said thirty laying days, and for the said part, to wit, eight, of the said ten days during which the said ship was so as VOL. XIII.-48 212

aforesaid allowed to be kept on demurrage over and above the said laying days; of which, &c. ; notice to defendant. That, during all the residue of the ten days, plaintiffs were ready and willing to keep the ship at Cronstadt, and to receive and take on board the ship at Cronstadt such full and complete cargo as aforesaid, not exceeding, &c., and in all respects to perform, &c., the said charter-party; of which, &c.; notice to defendant. And, although, &c. (averment of performance by plaintiffs of all things promised by them), yet defendant, disregarding, &c., did not nor would ship on board the said ship, when she was so at Cronstadt aforesaid, such full and complete cargo as aforesaid not exceeding, &c., but, on the contrary thereof, would only ship, and only shipped, on board the said ship when she was so at Cronstadt, a cargo of deals and ends and lathwood, and wholly refused to ship, and did not ship, on board the said ship, when she was so at Cronstadt as aforesaid, 300 casks of tallow, or any quantity of tallow whatsoever; and *defendant, at the *635] expiration of the said part, to wit, the said eight, of the said ten days, to wit, on 25th September, 1847, requested plaintiffs that the said ship might sail and 'proceed with the said cargo so thereon shipped as aforesaid from Cronstadt to London, and there, at London deliver the same; and then, and not before the expiration of the said part, to wit, the said eight, of the said ten days, to wit, on the day and year last aforesaid, dispatched the said ship from Cronstadt aforesaid, and dispensed with plaintiffs' keeping the said ship at Cronstadt for the said residue of the said ten days, or any part thereof. And plaintiffs further say that, when the said ship was so dispatched as aforesaid, to wit, on the day and year last aforesaid, the said ship, being loaded with the said cargo so shipped on board her as aforesaid, did therewith, and with all convenient speed, proceed to and arrive at London aforesaid, and, having so arrived, &c. (averring report of the ship at the Custom House according to the charter-party); of all which, &c.; notice to defendant. That plaintiffs were, in a reasonable time in that behalf after the said ship so arrived as last aforesaid, to wit, on, &c., ready and willing to deliver the last mentioned cargo to defendant at London aforesaid, and so continued during the whole of the said residue of the said ten days, and until afterwards, to wit, on 22d October, 1847, when plaintiffs delivered the said cargo to defendant; of which, &c.; notice to defendant of the readiness and willingness: Yet defendant, further disregarding, &c., wrongfully kept and detained the said ship in and about the loading of the said ship at Cronstadt as aforesaid, and delivering the said cargo to defendant at London aforesaid, for divers, to wit, four, days over and *636] above the said thirty days and the said ten days. By reason of which premises the plaintiffs have earned less freight by a large sum, to wit, &c., than if the ship had been loaded with such cargo as in the charter-party mentioned, and lost the use of the ship for divers to

wit, four days over and above, &c., and the profits, to wit, &c., which they would have made by such use.

Plea 2 to the above count. That, at the time of the making or the said charter-party, it was asserted and represented by plaintiffs to defendant that the said ship was, on the day of making the said charterparty, to wit, on, &c., at Wyburg in the kingdom of Russia; and defendant then entered into and agreed to the said charter-party confiding in that representation and assertion of the plaintiffs; and defendant further says that the said ship was not, at the time of the making of the said charterparty, at Wyburg aforesaid. Verification.

Replication to plea 2. That, at the time of the making of the said charter-party, and at the same time when it was asserted and represented by plaintiffs to defendant as in the said plea mentioned, it was also asserted and represented by plaintiffs to defendant, and it was mentioned in the said charter-party, that the said ship was then bound on a voyage from Wyburg aforesaid to Hull. And the plaintiffs in fact say that, at the time of making the said several representations and assertions, and of the making of the said charter-party, to wit, on the said 14th June, 1847, plaintiffs believed that the said ship was then at Wyburg aforesaid and was then about to sail from Wyburg aforesaid to Hull aforesaid: and that, at the time of the making of the said several assertions and representations, and of the making of the *said charter-party, to [*637 wit, on the day and year last mentioned, the said ship was on her said voyage from Wyburg aforesaid to Hull aforesaid, the said ship having just before then, to wit, on 10th June, in the year aforesaid, sailed from Wyburg aforesaid on her said voyage to Hull aforesaid; and the said ship in fact then performed the said voyage direct from Wyburg aforesaid to Hull aforesaid. Verification.

Rejoinder. That the said assertion and representation, that the ship at the time of the making of the said charter-party was at Wyburg as in the said second plea mentioned, was contained and mentioned in the said charter-party, and was part and parcel thereof and of the said contract thereby made. And defendant says that the said ship was not, at the time of the making the said charter-party, at Wyburg aforesaid. Verification.

Demurrer, assigning for causes: That it does not appear in or by the said second plea or the said rejoinder that the said assertion and representation was a warranty or a condition precedent: also that the said rejoinder is a departure from the plea, inasmuch as the rejoinder sets up an assertion and representation contained in the charter-party, and in writing, whereas the assertion and representation in the said second plea is not alleged to have been or to be contained in the charter-party, or to have been or to be in writing, and might and would have been proved by parol or by writing dehors the charter-party; and that, if it was a material and traversable fact that the said assertion and repre

sentation was contained in the charter-party, then that fact ought to have been alleged in the plea. Joinder.

* Unthank, for the plaintiffs.-First, the statement of the plain*638] tiffs, as described in the plea, was substantially true; or, if it was not, the variation was in favour of the defendant. But at all events it is not, as pleaded, a warranty. Assuming that it was contained in the charterparty, every statement introduced into a charter-party is not a warranty. The distinction between a warranty and a mere representation is pointed out by Lord MANSFIELD in Pawson v. Watson, 2 Cowp. 785. In Ollive v. Booker, 1 Exch. 416,† the statement in a charter-party that the ship was "now at sea, having sailed three weeks ago," was held to be a warranty and to create a condition precedent; but there it was expressly pleaded that time and the probable situation of the vessel were material and essential parts of the contract. In Glaholm v. Hays, 2 Man. & G. 257 (E. C. L. R. vol. 40), there relied upon, TINDAL, C. J., discusses the nature and materiality of such conditions in a charterparty.(a) [WIGHTMAN, J.-What do you say distinguishes a mere representation from a warranty?] The Court will judge from the whole instrument whether the fulfilment was a material part of the contract, according to the intention of the parties. Freeman v. Taylor, 8 Bing. 124 (E. C. L. R. vol. 21), and Clipsham v. Vertue, 5 Q. B. 265 (E. C. L. R. vol. 48), also show the *principle on which particular terms *639] in such a contract as this are held essential or otherwise. Here the words, as stated in the plea, appear as a representation only; and nothing is added to show that they were a material part of the agree ment. The rejoinder, if intended to allege more than a representation, is a departure from the plea. And, further, the variation from the contract here is pleaded to a charge, not of repudiating the contract altogether, but of fulfilling it imperfectly; that is, by loading an improper cargo, and by detaining the ship too long. The defendant admits that he has, in some measure, adopted the charter-party: he has, in fact, treated the stipulation as one of the third class mentioned in note (4) to Pordage v. Cole, 1 Wms. Saund. 320 c, 6th ed., "where a covenant goes only to part of the consideration on both sides." Havelock v. Geddes, 10 East, 555, shows the application of the general law to a case resembling the present.

Willes, contrà.-The supposed benefit to the defendant by the variation from the contract is not clear in point of fact, and is not admitted. The doctrine of Havelock v. Geddes, and of the cases cited in note (4) to Pordage v. Cole, need not be disputed. In cases of that class, it is

(a) Unthank read the following words of the judgment, p. 266: "Whether a particular clause in a charter-party shall be held to be a condition, upon the non-performance of which by the one party, the other is at liberty to abandon the contract, and consider it at an end; or whether it amounts to an agreement only, the breach whereof is to be recompensed by an action for damages. must depend upon the intention of the parties to be collected, in each particular case, from the terms of the agreement itself, and from the subject-matter to which it relates."

admitted that the contract was valid at the time of making it. But here the allegation is, in effect, that the plaintiffs induced the defendant to enter into the contract by a certain representation; that that was false; that defendant, if he had known it to be false, would not have contracted; and that, consequently, the contract never bound him. The judgment of PARKE, B., in Ollive v. Booker, 1 Exch. 423,† sanctions this view. *[WIGHTMAN, J.-There the plea expressly averred [*640 that the facts represented were essential to the contract.] The judgment does not seem to treat that circumstance as material. This case is analogous to Gregg v. Wells, 10 A. & E. 90 (E. C. L. R. vol. 37), and others, in which a party has been held liable for inducing another, by a false suggestion or deceptive conduct, to alter his situation for the worse. It is laid down, in Adamson v. Jarvis, 4 Bing. 66, 73 (E. C. L. R. vol. 13, 15), that he who affirms either what he does not know to be true, (a) or knows to be false, to another's prejudice and his own gain, is both in morality and law guilty of falshood, and must answer in damages." [WIGHTMAN, J.-Do the words "to another's prejudice" apply here? ERLE, J.-Is every statement in a charter-party essential ?] Every one by which the charterer is induced to enter into the contract. [ERLE, J.-You are calling upon us to take judicial notice that the supposed fact of the ship being at Wyburg was a material fact which induced the defendant to enter into the contract. You might, in the same way, assume that the name of the ship was such a fact.] The plea says that the defendant, "confiding in that representation," entered into the charter-party. If that had been traversed, it would have been for a jury to say whether a reasonable man could have been induced by the representation to make the contract. [WIGHTMAN, J.-The plea does not say that he was induced by it.] The averment in the plea is sufficient, not being specially demurred to. [PATTESON, J.—The replication makes averments to take off the effect of the plea as to the representation; and then you rejoin, in effect, that the assertion *was not [*641 a mere representation, but a warranty. ERLE, J.-All the cases as to representation import either that the representation was in itself material, or that the parties themselves made it an essential part of their contract. WIGHTMAN, J.-Your plea showing no more than a representation, is not your rejoinder a departure? And the objection is pointed out on demurrer.] The rejoinder certainly cannot be supported. [WIGHTMAN, J.-The plea will not do, without the rejoinder. ERLE, J.-It is clear that the plea does not show any defence on the ground of warranty. But I think also that, if this had been otherwise, the loading in part execution of the contract would have been an answer according to the opinion expressed by PARKE, B., in Olive v. Booker, 1 Exch. 423.t]

Per Curiam.(b)

(a) See Ormrod v. Huth, 14 M. & W. 651.†

Judgment for plaintiffs.

(b) PATTESON, WIGHTMAN, and ERLE, Js. Lord DENMAN, C. J., was absent on account of ill health.