As this case formerly was presented to the court, it appeared to us that there was a breach of the contract on the part of the master, Brown, one of the plaintiffs, in not filling up the entire eleven twelfths of the cargo to be purchased *280on the part of the defendants. And although in the event that happened, it was fortunate for the defendants that it was not en tirely filled up, yet if the plaintiff Brown, with whom the other plaintiff was connected, by a plain breach of the agreement, earned a profit to himself and his co-plaintiff, the defendants had a right to participate in the benefit of it. But as the matter now presents itself, it appears that the failure to comply with the agreement was on the part of the defendants, in not furnishing funds to fill up their proportion of the vessel. The master was to exercise his discretion in apportioning the plaintiffs’ funds amongst the three articles of merchandise to be purchased, as he should think best; and he had an obvious interest in purchasing those articles which promised to yield the best profit. If the defendants intended to rely on the fact that the master wilfully invested all their funds in the less bulky, instead of the more bulky articles, with a view to promote his own interest, to their detriment, that fact should have been distinctly averred and proved. But the master was left by the defendants to his judgment, knowing the relation in which he stood to the vessel and voyage; and in the absence of proof, we are bound to presume that he exercised his judgment honestly.
But it is contended for the defendants, that taking the agree ment and the instructions together, the master was bound so to apportion the funds amongst the articles more and those less bulky, as to fill the ship with the amount of funds furnished by the defendants. But we cannot so understand the agreement. That provided for taking a cargo of sugar, or coffee, or hides, or either one or two, or all these. And the defendants agreed to furnish eleven twelfths of a full cargo. Of course therefore they agreed to furnish funds enough to procure a cargo of either one or two, or an assorted cargo of the three articles ; and if they failed to do so, they failed to perform their part of the agreement.
It is argued on the part of the defendants, that the plaintiffs knew the amount of funds furnished by them, and made no objection that it was not sufficient to purchase their stipulated part of the cargo ; and that in fact it was sufficient, if the whole or *281a greater part had been taken in the bulkier article of sugar, and less in the more costly article of coffee. But we perceive nothing of this in the agreement or statement of facts. It does not appear of what the defendants’ funds consisted, what was the amount of them, or that the plaintiffs knew of the amount, or that the parties knew what would be the absolute or relative cost of the different articles, at the place of shipment. The duty of furnishing funds for the full amount, by letter of credit, bills of exchange, or otherwise, was upon the defendants, by the agreement.
It appears then by the facts, that after the plaintiffs had furnished their one twelfth of the cargo, the whole of the defendants’ funds filled up two hundred and thirty-one tons only, leaving a capacity of forty-six tons unoccupied: That is, the plaintiffs furnished eleven tons, they took fifty-nine tons on freight, fourteen of which, added to their eleven, made twenty-five, which was their stipulated one twelfth of the cargo, or capacity of the vessel. They had a right, by the terms of the contract, to fill up their own one twelfth or twenty-five tons, either with their own goods, or goods on freight.
There remained forty-six tons of the capacity of the vessel, for which the master, by an arrangement with Messrs Gardner & Co. at Rio, took freight at four pounds per ton. This is the subject of the present action.
It is urged for the defendants, that they had a right to eleven twelfths of the capacity of the vessel, and of course that this freight is theirs. But we do not so understand the agreement. It is in no sense a charter-party, or letting of the vessel. It is true that they had a right to fill the vessel to this extent, with their own goods; and if they had offered to do so, or had furnished the master with funds for the purpose, and he, in breach of the agreement, had not so filled up their proportion, but reserved the room for earning freight, it would have presented a very different question. But the extent of the defendants’ right, under the agreement, was thus to fill the vessel with their own goocTs. Having failed to do so, we think that the owners were remitted to their general right, as owners, to take goods for other ship*282pers, and receive the freight, which is compensation for the carriage of goods, to their own account. Independently of stipulation, the earnings of a vessel belong to the owners. Supposing, through the failure of a letter of credit, or otherwise, the funds of the defendants had wholly failed, the plaintiffs might have had a cause of action for breach of the agreement. In addition to this, they would have had a right to employ their vessel in freighting goods to Antwerp or elsewhere, and it could hardly be pretended that the defendants could claim any participation , in the freight thus earned.
It is no doubt better for all parties, in the event that has occurred, that of an unproductive and unprofitable adventure, that the whole vessel was not filled up by the defendants. There would have been a greater loss on their part, by having a larger amount of merchandise at risk, on which there was a loss instead •of a profit; and the owners would have lost in the same proportion, because their freight was to depend mainly on the profits.
Who then shall profit by this fortunate accident, by which the loss of all parties was diminished, and some advantage .obtained ? We think it is the owners, who, by having a vessel not wholly filled, were enabled to save something for themselves. It is no answer to this, we think, to say that if the agreement had been fulfilled, the owners would have received no more than they would now receive, if the defendants were allowed to detain this freight to themselves. It may be said with much more force, on the other side, that if the defendants had fulfilled their agreement, they would have been no better off than they will be now, after accounting for this freight to the owners; and to allow them to retain it would be to allow them to profit by their own breach of contract. But the true ground we think is, that the plaintiffs’ vessel earned the freight, after the defendants had failed to avail themselves of the right to fill her up on the terms of the agreement ; and that they are entitled to the freight as owners. But as to the amount of freight obtained, it is conceded to be greater than the current rate of freight, and was allowed by Gardner & Co. at such high rate, instead of a return commission, which they would have allowed, and which would have enured, by the *283agreement, to the benefit of the defendants ; to the extent of this return commission the defendants have a right to retain — the amount having been in fact obtained by the plaintiffs in the name of freight, as a substitute for such return commission. We are of opinion that the plaintiffs are entitled to recover this freight, with a deduction of such return commission, and that the damages are to be settled on this basis.
Putnam, J. did not sit in this case.