(dissenting):
The judgment recovered was for the balance remaining unpaid upon the freight of so much of a cargo on board the vessel of which the plaintiff was master, as was carried to and delivered at the port of Cadiz, in Spain. It was laden and carried under the terms of a charter-party made and executed between the plaintiff, as master of the ship, and the defendants, for a round trip from the United States to Spain and back again. By the charter-party the defendants became liable to the plaintiff for the payment of the stipulated amount tó be paid for the service of the vessel. A portion of the amount due on so much of the cargo as was unladen at Cadiz was paid to the plaintiff, but the balance of $2,447.60 was not paid to him by the defendant’s agents^at Cadiz, nor by themselves, and'it was for the recovery of that amount that the action was prosecuted against the defendants. While the vessel was at Cadiz, the plaintiff entered into an agreement with Poggio Hermanos, who was one of the defendant’s agents there, for the purposes of the charter, that he should remit the amount in controversy to Baring *390Brothers, for the benefit of, the plaintiff, and he afterwards assured the latter that he had done so. But instead of remitting the money in the course of business, as that was intended to have been done, the agent drew his own draft for the amount upon the defendants, and sent that draft forward, instead of a draft remitting the money to Baring Brothers. The draft sent forward was neither seen nor received by the plaintiff until after his return to the United States, and was never accepted by him as a payment of the. balance remaining unpaid upon the charter-party. Previous to the time when he left Cadiz he was assured by the agent that a draft had been purchased by him and sent forward under their arrangement, and the agent stated that he had been able to obtain it upon favorable terms as to price. In that manner he evidently led the plaintiff to believe that he-had bought such a draft as was contemplated by the parties and required for the transmisssion of the funds -from Cadiz to Baring Brothers, for the benefit of the plaintiff. The draft actually drawn by the agent was presented to the defendants, both for acceptance and payment. They refused to accept and _ also refused to pay, and it ivas accordingly protested. It was produced upon the trial and was there ready to be surrendered to the defendants.
By this evidence, which was not contradicted, the fact was established to the satisfaction of the refereé, that the plaintiff at no time consented to receive the draft for the balance of his freight, which was drawn by the agent upon the defendants. But what he did consent to accept was such a draft as would remit the funds to which he was entitled for the balance of his freight to Baring Brothers, where he could receive the amount of money on his return to the United States. Such a draft was never at any time obtained or sent forward, and the agreement made was in no mannei’; therefore, performed which was entered into between himself and the defendants’ agent. He never consented to receive the agent’s draft upon the defendants, and had no knowledge that such a draft was drawn and sent'forward until after he returned to the United ■States, and then for the first time discovered that his understanding with the agent had in no manner been observed. He was not bound to, and never did, accept the draft which the agent drew upon his principals, and there was accordingly no payment made of this balance of the freight earned, to the plaintiff, and the oblr *391gation.of the defendants for its payment was neither released nor satisfied. If the draft agreed upon had been sent forward, the money then would have been at the risk of the plaintiff, and in ease of its loss the defendants would have been exonerated from further liability; but that was not done. Neither was any paper made or sent forward which the plaintiff in any form consented to receive for his freight. The case in this respect materially differed from thát of Darnall v. Moorehouse (45 N. Y., 65), for there the creditor received precisely the paper which it fans intended he should have, and by his own neglect and default rendered it unavailable to himself, and for that reason it was held that he had in the transaction relieved the defendant from liability. But in this case no fact of that description arose, for the plaintiff did not in any form consent to receive the draft or obligation of the agent and at no time accepted it, but-it was drawn and forwarded in plain viola tion of the only understanding entered into between the plaintiff and the defendants’ agent. Neither the case referred to nor that of Smith v. Miller (52 N. Y., 545), in any manner stood in-the way of the plaintiff’s right to maintáin the action. And not anything was said in the case of First National Bank v. Fourth National Bank (24 Hun, 241) which will afford any support or assistance to the defense relied upon in the action. Where the carrier upon the delivery of a cargo voluntarily elects to receive the draft or bill of the consignee for the payment of the freight, there the law requires him to be concluded by his election, and if he fails to obtain payment in that manner the loss will afterwards be his own. But to impose this responsibility on the carrier the paper must appear to have been voluntarily accepted or received by him. This point was quite elaborately considered in Tapley v. Martens (8 Durn. & East, 451), where it was held in substance that the carrier would be precluded from resorting to the shipper by taking a bill of exchange, afterwards turning out to be of no value, when he should do that voluntarily and for his own .accommodation. Everett v. Collins (2 Campbell, 515); Marsh v. Pedder (4 id., 257); Robinson v. Read (9 Barn. & C., 449); The Salem's Cargo (1 Sprague’s Decisions, 389); Grant v. Wood (21N. J. [1 Zabriskie], 292), and Anderson v. Hillies (10 Eng. Law & Eq., 495), sustain this principle as the law applicable to eases of this *392description. Neither of them, nor any other authority which has been cited or discovered, support the proposition that the master’s action against the shippers for the recovery of his freight can be defeated by the transmission from the consignee, for his benefit, of a bill which the carrier not only did not agree to receive in any event, but had taken care to stipulate for the transmission of his balance by what was contemplated between the parties as a banker’s draft. The paper which was sent forward was an intentional as wéll as a plain violation and departure from the understanding entered into between the plaintiff and the consignee. And as it could not have-the effect, without being accepted by the former, of relieving the defendants from their liability for the payment of the balance of the freight, the referee was right in holding them liable to that extent in the action. (Shepard v De Bernales, 3 East, 565; Grant v. Wood, 1 Zabriskie, 292.)
On the return of the vessel she was laden with salt, under the authority of the defendants, to be delivered at Gloucester, in the State of Massachusetts. Upon her arrival there and the delivery of the salt the plaintiff received from the consignee the sum of $1,920, for which he gave a receipt, declaring it to be in full for the round charter of the bark Bessie. This was the precise amount remaining unpaid for the carriage and delivery of the salt. It included no part or parcel of the balance payable upon the outward cargo, but the settlement with Barker was only for the freight upon the salt, and for that reason the statement in the receipt that the payment was in full for the round charter of the bark in no way relieved the defendants from the liability incurred by them,"through the charter party, for the payment of the balance of the freight earned by the carriage and delivery of the outward bound cargo. The receipt, under a very well settled principle, was subject to explanation, and that which was given, and in no manner contradicted, showed that its sole and only purpose was to settle the freight payable for the carriage and delivery of the salt. The referee was right in holding the defendants liable for the balance still unpaid to the plaintiff, and the judgment should be affirmed.
Judgment reversed, new trial ordered, costs to abide event.