The opinion of the court was delivered,
by Woodward, J.— At the argument of this cause I was not sure but that some peculiarity attached itself to the contract of affreightment, whereby a shipowner, who had undertaken the conveyance of merchandise and been prevented by the perils of the sea from delivering it according to the consignment, would he entitled to recover from the shipper either full freight, or freight pro rata itineris. But upon looking into the authorities, I am satisfied that no peculiarity distinguishes the contract of affreightment from that class of contracts which the law treats as executory and entire contracts. The settled doctrine of the English and American cases is, that entire contracts must be fully performed, and cannot be apportioned, although a new contract may be implied from the voluntary acceptance of services or performance different from that for which the original contract provided: Cutter v. Powell, 6 Term R. 820, and the notes thereto, in 2 Smith’s Lead. Cases, Am. ed., pp. 1-45. That this doctrine is as applicable to freight as to other things, may be seen from the cases collected and commented on by Judge Story *174in the note on page 547 of his edition of Abbott on Shipping, and in the note to the case of Vlierboom v. Chapman, 13 M. & W. 239, Am. edition.
But the best cases I have found are in our own books. In Hurtin v. The Union Insurance Co., 1 W. C. C. R. 530, Judge Washington laid down the law in these few and simple words: “If the cargo is not conveyed to its place of destination, no freight can be demanded. If voluntarily accepted at any other port by the owner or his supercargo, freight pro rata itineris is due.”
The case of Amroyd v. The Union Insurance Co., 3 Binn. 444, is to the same effect. So is the case of Callender v. The Insurance Co. of North America, 5 Binn. 525, wherein Chief Justice Tilghman, after discussing Lord Mansfield’s celebrated case of Luke v. Lyde, 2 Burrowes 883, says, “ it seems to have been understood that pro rata freight is not due, unless the consent of the merchant, either by words or actions, has been expressly given, or may be fairly deduced, to accept his goods at an intermediate port, and such consent being given, the original contract is dissolved, and a new one arises.”
In-the case of Gray v. Waln, 2 S. & R. 229, the same doctriné was applied, and a pro rata freight allowed, because upon the whole evidence it was impossible to entertain a doubt that the cargo was voluntarily received by the supercargo at a port short of the ship’s destination. These Pennsylvania cases contain a very full discussion, both at bar and on the bench, of all. the learning on the subject.
Now, upon these principles, it is perfectly plain that the defendants were entitled to no set-off, either for full or partial freight. They undertook to carry the plaintiffs’ corn from Philadelphia to Liverpool, aboard the ship Tigress. A few hours out of port, the vessel was stranded, without fault of the master or crew. The plaintiffs’ corn was taken out, transferred to fighters, brought back to Philadelphia in a wet and damaged condition, and was surveyed and condemned to be sold for account of all concerned. All this occurred without notice to the plaintiffs, and without assent or action of any sort on their part. Not a declaration or circumstance was alleged or shown from which a new contract could be supposed to arise. And this distinguishes the case from that of Jordan v. The Warren Insurance Co., 1 Story 342, in which the dictum of Judge Story, so much relied on by the learned counsel of the plaintiffs in error, is found, for that was in reality a case of “ mutual voluntary agreement on the part of the master and the shippers, that the damaged cargo should be sold." But here, so far from there being any such agreement, there was not even a notice, by the master to the shippers, of damage to the *175corn, or of the condemnation and sale, of it. The case is bare of any circumstance from which the plaintiffs’ acceptance of part performance can be inferred.
But, it is said, the master is the agent of the shippers. For some purposes he is. He may, under stress of weather, remove the cargo into another vessel that may chance to be at hand, and if done in good faith, he will not be liable, though his own ship outride the storm and the other perish. He may in some circumstances hypothecate the cargo, or sell part of it, or after condemnation, the whole of it, as in this case. But, in the language of Judge Strong, “he is not the agent of the owners of the cargo, with power to relieve the shipowners from their obligation to convey according to the contract of affreightment. Vlierboom v. Chapman, 13 M. & W. 230, asserts that he is not, pointedly and directly.” I may add, that to treat him as the agent for the shippers for such a purpose, would confound all our ideas of contracts; for how is a man to contract with himself ? As agent of the shipowners, he may enter into the contract of affreightment with the shippers; and then if, as agent of the shippers, he may modify or annul that contract, or make a new one, it is self-evident that his mere will is substituted for the contract of affreightment.
The learned judge was right in ruling that the receipt by the plaintiffs of a portion of the proceeds of the sale of the corn, amounted to no voluntary acceptance of the cargo at Philadelphia. A similar implication of a new contract was attempted to be set up in Amroyd v. The Insurance Company, before referred to; but, said Judge Tilghman, “ it is no answer to the defendant’s objection to say that they have ratified the sale of the goods by accepting the proceeds. What else could they do ? If they had refused the proceeds, they might have got nothing. They never were consulted about the sale.” These observations apply with decisive force to this point of the plaintiffs in error’s case. The plaintiffs were not consulted about the sale. They had no part in adjusting the general average account, nor did they receive the thousand and odd dollars on the foot of it. I do not mean that this sum did not result from that account, but there was no evidence to show that the plaintiffs had ever seen the account, or meant to ratify it by receiving what was apportioned to them. They received it, as a drowning man catches at straws, as the best that could be got; but under the circumstances we are not to imply from their receipt of it, that new contract in virtue of which alone they would be liable for freight.
Now, as to the bills of exception to evidence. The two notices of 14th April 1856, apparently the first intimation the plaintiffs had of the disaster, were subsequent to the sale of the corn, which fixed the rights of all parties. The receipt of such no*176tices, even less than the receipt of the partial payment above mentioned, would ground a presumption of a new contract, and the evidence was therefore properly rejected as irrelevant.
So was the other piece of evidence in regard to the beeswax of Raphael & Co. They received it back from the Tigress, and reshipped it by another vessel at the cost of the owners of the Tigress. Had the owners of the corn done the same in respect to their portion of the cargo, they would have made themselves liable for full freight; but since they did not, they could not be made liable by what Raphael & Co. did with their beeswax.
The judgment is affirmed.