The opinion of a majority of the Court, Whitman C. J. dissenting, was drawn up by
Shepley J.— This suit is upon a contract contained in a letter written by Joseph Mann to the plaintiff from New York, on May 30, 1842. From that letter it appears, that Mann held one quarter part of the barque Wyandot, as security for a loan of money. He therein engaged to convey that fourth part to the plaintiff upon payment of the amount loaned, with interest, within one year; and to account to him for one fourth of her net earnings. He sailed in the vessel, as master, from New York, in June following, and *367arrived, at the port of Champeton in Yucatan, and in a letter bearing date on August 12, 1842, he stated, that he was about to sail from that place with a cargo for Bremen. This is the last information received of the vessel or of any one on board of her. There was information received of a hurricane in the Gulf soon after, in which several vessels were said to have been lost.
The plaintiff was authorized by the letter of May 30, 1842, to pay the amount due to Mann to Edward D. Peters and company of Boston, if he should wish to redeem that quarter of the vessel’ during the absence of Mann. An agent of the plaintiff, duly authorized, called upon a member of that firm at their place of business in Boston, before the expiration of the year, exhibited to him the contract, and informed him, that lie was prepared to pay the money. And he testifies, that he was in fact prepared and ready to have paid, and in specie, if called for. Mr. Peters, in answer, stated, that Mann was lost, that he did not feel authorized to receive the money on his account, and that he would not take it. The vessel had been insured before she sailed from New York for $8000 by the procurement of Messrs. Nesmith & Walsh as agents for the owners. This sum, deducting the premium and other charges, was received by them for the owners on August 15, 1843. The master was to sail the vessel on shares, as it is called; that is, he was to victual and man her at his own expense, and to pay one half of all port charges, and was to receive to his own use one half of her earnings. It appears from the account of Peters & Co. that an insurance of $1500 had been procured on his half of the freight, which was paid on August 18, 1843. And that a like sum for the insurance of the owners’ half of the freight was received by Messrs. Means & Clark on August 17, 1843.
To be entitled to maintain this suit the plaintiff must shew either a performance, or a readiness and an offer to perform, on his own part. The conveyance of a quarter part of the vessel, and the payment of the money loaned with interest, were by the contract to be simultaneous acts. In such case it *368is sufficient for the party claiming from the other a performance of the contract to show a readiness and an offer to perform. A formal and technical tender is not required of him. Rawson v. Johnson, 1 East, 202; Low v. Marshall, 17 Maine R. 232. If a tender were necessary, it would be sufficient to show, that he had done all, that could be done on his part to accomplish, what by the agreement he was bound to do. Lancashire v. Killingworth, Salk. 623; Philips v. Hugre, Cro. Jac. 13; 2 Saund. 350, note 3. This is proved by the testimony of R. C. Johnson.
If this be so, it is contended in defence that performance became impossible before that time by the loss of the vessel, and is therefore excused. The rule relied upon, that if a thing become physically impossible to be done by the act of God, performance is excused, does not prevail, when the essential purpose of the contract may be accomplished.
If the intention of the parties can be substantially, though not literally, executed, performance is not excused. Chapman v. Dalton, Plowd. 284; Holtham v. Ryland, 1 Eq. Ca. Abr. 18. In this case the parties must'have known, that the vessel might be lost within the year. Did they intend in such an event, that each should protect himself or suffer his own loss ; or that one insurance for the benefit of all should protect the interests of all ? This clause is contained in the letter of Mann to the plaintiff; “it being further understood, that barque meets with any loss not covered by insurance by not obtaining successful business, or any misfortune or casualty of any name or description, it is to be borne by you.” The intention is here clearly exhibited, that such losses were not to be borne by him, if covered by insurance. The contract shews that the parties to it contemplated, that insurance had been or would be obtained, which might be beneficial to the plaintiff, although not effected for him only. How early, or by whose direction the insurance upon the vessel had been effected, does not appear ; but the testimony of Nesmith shews, that it had been effected before she sailed from New York. In no other way can the intention of the parties to the contract be earned into *369effect, than to hold Mann to be accountable to the plaintiff for any such losses covered by insurance, which has been collected. Although the clause before noticed is followed by one having reference only to the earnings of the vessel, yet it is not so connected with it, as to be limited by it; and the language providing for a loss happening to the barque by “ any misfortune or casualty of any name or description” is sufficiently broad to embrace a loss of the vessel. To refuse to make him thus accountable would require not only, that the intention of the parties should fail to be accomplished, but that the clause in the contract providing, that the plaintiff should not bear the losses covered by insurance, should be disregarded.
The contract also states that “ all net earnings or profits, after deducting insurance and charges of every name or kind, shall be paid over to you, when you claim to redeem her.” Will this admit of a construction, that a sum of money obtained by an insurance of freight was not to be accounted for ? The premium and expenses were to be a charge upon the plaintiff by their being deducted from the earnings of the vessel; and if the money thus obtained was not to be accounted for, the effect would be to make the plaintiff pay the premium and expenses without allowing him to derive any benefit from it, when the contract in another clause provides by a necessary implication, that the plaintiff was not to bear losses covered by insurance. Lot Clark testifies, that the firm of Means & Clark owned three-eighths of the vessel and obtained insurance on the owner’s half of the freight, and that they “ were agents of the ship in procuring insurance on the freightand that Mann “ owning one fourth of the barque” they paid one fourth of the amount, deducting expenses, to William Hopkins as the attorney of the defendant. The estate of Mann must therefore be held accountable to the plaintiff for an equitable adjustment of the amount received from the insurance made upon the vessel as well as from that made upon the freight.
There are two objections presented to the maintenance of *370the action against the defendant. The first is; that there is no satisfactory proof of the death of Joseph Mann. The second, that no will has been proved or letters of administration taken out on his estate; and that the defendant has not so conducted as to be liable as executrix de son tort.
With respect to the first objection, the proof is, as before stated, that no information has been received of the vessel or of any person on board of her since she was about to sail for Bremen in August, 1842. The insurance made upon the vessel and upon her freight has been paid as for a total loss. When a person leaves his usual place of residence with an intention of returning to it, and continues to be absent for seven years, without being heard of, he is presumed to be dead. The time, when such presumption will arise, may be greatly abridged by proof, that the person has encountered such perils as might be reasonably expected to destroy life, and has been so situated, that according to the ordinary course of human events he must have been heard of, if he had survived. In such cases insurance companies are accustomed to pay, as in this case, after the lapse of one year, when the vessel sailed for an European port and has not been heard of since. And administration has been granted on the estates of those on board and not heard of after a lapse of two years. No general or certain rule can in such cases be established. Each case must be decided by the competent tribunal upon proof of the facts and probabilities, that life has been destroyed.
One who has sailed in a vessel, which has never' been heard of for such length of time, as would be sufficient to allow information to be received from any part of the world, to which the vessel or persons on board might have been expected to be carried, and who has never been heard of, since the vessel sailed, may be presumed to be dead. The facts in this case being submitted to the Court, it should come to such a conclusion, as a jury might justly do ; and there does not appear to be any reasonable doubt, that the vessel, master and crew have all perished. The facts in relation to the second objection appear to be, that the defendant; by a power of attorney *371by her signed, authorized William Hopkins to receive, and that lie accordingly did receive of Means & Clark one fourth of the insurance on the vessel’s half of the freight; and of Nesmith & Walsh one fourth of the insurance on the vessel. lie also settled with Peters & Co. and received of them a part of the balance due. All these acts were performed by the defendant, through her agent, on the 16th, 17th and 18th days of August, 1843. Hopkins states, that the defendant requested him to act as the agent of Joseph Mann, but as his only power to act was derived from the defendant, such direction cannot alter the legal effect of those acts. The defendant subsequently drew drafts on Peters & Co. for more than two thousand dollars in favor of other persons, which were paid to them : and she thereby appropriated that amount out of the estate of her husband to the use of others. This she could do only by assuming the administration and disposition of the estate. These proceedings are quite sufficient to render her liable as executrix de son tort.
The manner in which the account should be stated, and the amount, which the plaintiff will be entitled to recover, ascertained, will be presented on a paper in possession of the clerk.
Defendant defaulted, and judgment for plaintiff.
A dissenting opinion was drawn up as follows by
Whitman C. J.— Not having been able to agree in the opinion just delivered, I will proceed to explain the reasons for dissenting therefrom. The action is founded upon a contract, entered into on the 30th day of May, 1842, between the plaintiff and the defendant’s intestate. The intestate, after reciting that he had received a bill of sale of the barque Wy-andot, as collateral security for a loan of sixteen hundred and fifty dollars, made by him to the plaintiff, stipulates to transfer the same to the plaintiff' at any time within one year from the said thirtieth day of May, upon being repaid the sum loaned with interest; but if not paid within the year, that the vessel should be considered as sold bona fide, meaning manifestly *372that the sale should become absolute. It was further stipulated that, if the vessel should meet with any misfortune or casualty, or by not being profitably employed, whereby a loss might accrue, not covered by insurance, it should fall upon the plaintiff; and that all net earnings, or profits, after deducting charges, should be paid to the plaintiff upon his claiming to redeem as aforesaid. The intestate further agreed, that the plaintiff might redeem, by paying the amount loaned and interest, on the condition before named, to E. D. Peters & Co. The plaintiff, by his agent, called on Peters & Co. on the 18th day of May, 1843, and offered to pay the amount of the loan and interest, but was informed by them that they knew nothing of any agency or authority to receive the money, and refused to receive it. It appears, by evidence entirely satisfactory, that the intestate, with the vessel, had been lost at sea early in the fall previous.
It appears that Messrs. Nesmith & Co. had effected insurance for $8000,00 on the vessel for the benefit of the owners, one fourth of which, Nesmith says, after deducting charges, was paid to the agent of the defendant, being said intestate’s “ proportion of said insurance money.” And it appears that Messrs. Means & Clark effected insurance on the freight of said vessel to the amount of $1500,00, which, with a deduction for charges, they received; and paid one fourth of it to the defendant’s agent, being, as one of them testifies, the proportion belonging to the intestate, “ he owning one fourth of the barque as we had no doubt.”
The claim of the plaintiff is now to recover so much of the insurance on the one fourth of the vessel, as the amount received therefor exceeded the ambunt of said loan and interest; and also for the one half of the amount received for insurance on the freight. To the former the plaintiff lays claim because it was stipulated in case of loss, that he should be the sufferer to the amount of all beyond what the insurance would pay, and to the latter, because the intestate agreed to be answerable for the net earnings of said quarter part of said vessel, falling to the owner’s share, she having been let to the intes*373tate upon shares, and he contends further, that, the insurance having been effected for the benefit of the owners, it was for liis benefit, he claiming to have been owner in equity of one quarter of the vessel. And a majority of the Court are of opinion that his claim in both particulars is sustainable. To me however it appears otherwise.
There is not a scintilla in the case tending to show, that the plaintiff ever authorized either Nesmith & Co. or Means & Clark to insure, or to procure insurance for him. On the other hand both firms, by their testimony, show that they acted as agents for the intestate ; that they were employed to procure insurance upon his interest; and that they received and paid over the amount of the losses to the defendant upon that supposition. There was then most clearly no insurance directly upon any interest remaining in the plaintiff, either legally or equitably. Upon what ground then can the plaintiff sustain his claim ? It is urged that the intestate contracted to re-convey the vessel, and to account for a proportion of her net earnings upon certain terms and conditions, which, by the offer to pay the loan to Peters & Co., are supposed to have been complied with. But the intestate did not stipulate to transfer any insurance he might effectuate for his own security, upon either freight or vessel, in any event, to the plaintiff. Suppose the debt had been actually paid, after insurance had been effected by the intestate upon his interest in the vessel and freight, his interest thereupon would have ceased and he could not have recovered for his insurance; and nothing can be more obvious than that the plaintiff could not have recovered on any policy so effected; and the intestate could not, upon receiving such payment, have transferred any policy, so by him effected, to the plaintiff, so as to have been available to him. And as the vessel and freight were both extinct neither of those could be transferable. The loss of the vessel and freight, by inevitable accident, in the course of her authorized employment, put an end to the contract, the intestate having been fully indemnified by his insurance, and the plaintiff being exonerated from liability for his debt. The intestate was *374careful to make his interest secure by his policies, while the plaintiff was content to be his own insurer upon whatever interest in equity or otherwise he may have had in the vessel or freight. And so, in my estimation, is without cause of action.