Curia, per
Sutherland, J.This court has repeatedly held, that freight pro rata itineris is due, where a ship, in consequence of the perils of the sea, without any fault of the master, goes into a port short of her destination ; and is unable to prosecute the voyage ; and the goods are received by the owner at such intermediate port. (2 Caines, 21. 1 John. 27. 2 John. 323, 336. 9 John. 19, 20, 186.) This principle has been adopted frem the decisions of the English courts, commencing with Luke v. Lyde, (2 Burr. 882,) and continued, without any essential conflict or contrariety, down to the present time. (7 T. R. 381. 5 East, 316. 10 East, 393, 526. 2 Campb. 466. 3 Bin. 448. 5 id. 525. 7 Crunch, 358. 1 Marsh. 281, note.)
This general principle is not disputed by the defendant’s counsel. On the other hand, it is conceded, that where the master refuses to repair his ship and send on the goods, or to procure other vessels for the purpose, and the owner of the goods then receives them, that this is not such an acceptance of the goods, as will entitle the ship owuier to a pro rata freight. It is not a voluntary acceptance. He does not elect to receive his goods at the intermediate port, and sell them there, or become his own carrier to the port of destination. He does not assent to the termination of the voyage at the intermediate port: but it having been terminated there against his will, by- the refusal of the master to send on his goods to the port of destination, he does not, by receiving them under such circumstances, in judgment of law, promise to pay the freight to the intermediate port.
The judge, in his charge to the jury, entirely excluded the question, whether the acceptance oí the goods, was *511voluntary or not; and instructed them that the fact of re-eemn¡5 goods under any circumstances, rendered the owner liable for a pro rata freight; unless he could show an express and positive agreement of the master, at the time of the delivery of the goods, to waive and discharge all claim to the freight. In this I think he erred. The cases already cited, particularly those in 9 John, show, that, in order to raise an implied assumpsit in such cases, the acceptance must be voluntary. No other rule would be consonant with justice or equity.
But the master diddinally declare his election to repair his ship, and send on the goods ; and they were agreed to be received by the defendant’s agent, after such declaration had been made to him. This was at first upon the express condition of his giving an order on the defendant for the freight; but finally they were delivered and received without any such condition. These circumstances are claimed to be sufficient to sustain the verdict; and it is said, admitting the judge’s charge to be incorrect, as it goes beyond the facts, a new trial should not, for that reason, be granted. Under the circumstances of the case, the agent might well have supposed that there was no bona fide intention to repair. He swears that such was his opinion ; and that the goods were finally delivered unconditionally; that is, (as I understand him,) without any order having been given for the freight.
I think the judge should have left it to the jury to determine whether the master did intend to repair the vessel, and complete the voyage; and whether the acceptance of the goods byf the agent of the defendant was voluntary or not.
New trial granted.