firmed. Yet it can have no influence upon the decision of this case, since the fact established by the illegal testimony could not in the least impair the plaintiff's right. If it is admitted that the sale was made for the avowed purpose of defrauding the plaintiff's creditors, yet under the law he would not be entitled to a verdict. The verdict then being contrary to law most clearly falls within one of the grounds specified in the motion.

In respect to the instructions, it is not alleged that the court erred in giving or refusing them, but that the jury were not. governed by them in their verdict. We are not prepared to say that the verdict is contrary to the instructions of the court. The instructions are conditional, that in case they should find a certain state of facts to exist that then they should find for the plaintiff or for the defendant. The circuit court could not possibly determine whether the jury found in conformity with the instructions, when that finding was expressly left to depend upon their own judgment as to the state of facts upon which they were to predicate such finding. The propriety of the instructions themselves is not presented by the motion, and consequently is not in the case.

We are clear that there is error in the decision of the circuit court in overruling the motion for a new trial, and that consequently the same ought to be reversed. The judgment of the circuit court of Hempstead county herein rendered is therefore reversed with costs, and the cause remanded with instructions to be proceeded in according to law and not inconsistent with this opinion.

FRAUDULENT Or Voluntary CONVEYANCE IS BINDING UPON PARTIES TO IT: See Meux v. Anthony, ante, 274, and note. The principal case was cited in reference to the effect of creditors setting aside a fraudulent conveyance, in Avery v. Hackley, 20 Wall. 411; S. C., 11 Nat. Bank. Reg. Rep. 244.

PROPERTY NECESSARY TO MAINTAIN REPLEVIN: See Haythorn v. Rushforth, 38 Am. Dec. 540; Sanford Manuf. Co. v. Wiggin, 40 Id. 198, Pattison v. Adams, 42 Id. 59; and the notes to those cases.

CASES

IN THE

SUPREME COURT

or

CALIFORNIA.

FROTHINGHAM v. JENKINS.

[1 CALIFORNIA, 42.]

MASTER OF SHIP HAS LIEN ON CARGO FOR FREIGHT TO BE PAID THEREON, and is not bound to part with any of the goods until entire freight is paid.

OFFERING TO GIVE GOOD SECURITY FOR PAYMENT OF FREIGHT IS NOT PAY

MENT.

DELIVERY OF PART OF GOODS SHIPPED UNDER ONE BILL OF LADING to

consignee, does not defeat lien on remainder for whole of unpaid freight. DELIVERY OF CARGO AND PAYMENT OF FREIGHT ARE CONCURRENT ACTS,

and neither party is obliged to perform without the other being ready. APPEAL from judgment of court of first instance, district of San Francisco, dissolving an injunction and dismissing suit. The facts are stated in the opinion.

J. B. Hart, for the plaintiffs.

Hall McAllister, for the defendants.

By Court, BENNETT, J. The plaintiff's shipped at Boston under one bill of lading a cargo of merchandise, owned by them, to San Francisco, under consignment to H. A. Breed, he or they paying freight thereon, the amount of which was seventeen thousand six hundred and one dollars and thirty-five cents. According to the contract, as appeared by the bill of lading, the goods were to be delivered alongside of the ship, within reach of her tackles, and were to be received within twenty days after arrival-if not received within that time, the master was to have the right of selling them. The items of freight estimated on

each of the articles shipped, and making in the aggregate the gross sum above stated, were set down at the time of the shipment, in a paper attached to the bill of lading. A question was made at the trial, whether eight thousand dollars of the freight was paid before the sailing of the ship, but there is no proof of such payment. Soon after the arrival at San Francisco, the consignee, on behalf of the owners of the cargo, for whom he acted as agent, paid six thousand dollars on the freight, and received a small portion of the goods, but was unable to raise funds to pay the balance of the freight. He thereupon requested a delivery of certain specific articles, which would command a ready sale, in order that he might take them into the market and dispose of them, and he offered to give good security to the master that the money received on the sale of such portions of the cargo as might be delivered to him, should be applied towards the extinguishment of the freight. The master declined this offer, and also refused to deliver any more of the goods until the freight on the whole was paid. This suit was then brought, an injunction issued restraining the master from selling the goods, a trial had, and from the judgment of the court below dissolving the injunction and dismissing the suit the plaintiffs have appealed.

We think that the judgment of the court below must be affirmed. Here is a variety of merchandise shipped to one consignee, all to be delivered at the same port, for a given amount of freight; an inability on the part of the owners to pay that freight, and suit brought by them to attain some end, of which they themselves seem to have had but an indistinct and indefinite notion. The master had a lien upon the goods for the freight agreed to be paid thereon, and was not bound to part with any of them until the whole freight was paid: 3 Kent's Com. 220, 222; Angell on Com. Car. 368; Abbott on Ship., 5th Am. ed., 366. Offering to give good security, or giving good security, is not payment. Delivery of a part of the goods shipped to one consignee does not defeat a lien upon the remainder for the whole freight: Cross on Lien, 290, marg. pag.; Angell on Com. Car. 360; Abbott on Ship. 461. Part delivery, therefore, in this case, did not affect the lien. The delivery of goods and the payment of freight are concurrent acts, and neither party is obliged to perform his part of the contract, without the other being ready to perform the correlative act: Angell on Com. Car. 368. The defendants could not require payment without a readiness to deliver, and the plaintiffs could not demand delivery without a

readiness to pay. The plantiffs were not ready to pay, and consequently they were not in a situation to require delivery, or to bring suit for a refusal to deliver.

We should be disposed to afford relief, if we could do it without violating settled rules of law. The defendants appear to have pursued a legal but at the same time an unconscionable course. They have exacted a strict compliance with their contract, and we can not compel them to waive their rights, whatever opinion we may entertain of the fairness of their conduct. Whether the plaintiffs would have any remedy in case the defendants should sell the goods, and if so, what remedy, is not for us now to say.

Judgment affirmed.

MASTER HAS GENERAL LIEN ON CARGO for freight and charges, which passes by assignment: Everett v. Coffin, 22 Am. Dec. 551. The right to retain goods for freight does not exist where the parties have expressly regulated the time and manner of paying freight, and especially if the cargo is deliverable before the arrival of the periods of payment: Chandler v. Belden, 9 Id. 193. A vendor is liable for freight and charges on goods stopped in transitu while on board a ship belonging to his vendee, and the latter has a lien on the goods for the same: Newhall v. Vargas, 33 Id. 617.

MASTER'S LIEN IS NOT WAIVED by its assignee by mere failure to assert it when the goods are demanded, unless he distinctly puts his right to hold them on some other ground: Everett v. Coffin, 22 Am. Dec. 551.

MASTER HAS ORDINARILY NO AUTHORITY TO SELL CARGO: Saltus v. Everett, 32 Ain. Dec. 541; note to Williams v. Merle, 25 Id. 616; and see Newhall v. Dunlap, 31 Id. 45; nor to purchase cargo, on account of the owner, without an authorization for that purpose: Hewett v. Buch, 35 Id. 243; and see Newhall v. Dunlap, 31 Id. 45; but he may sell a damaged cargo: Myers v. Baymore, 49 Id. 586.

OFFER TO PERFORM IS PERFORMANCE: Commissioners of Kensington v. Wood, 49 Am. Dec. 582.

COLE v. SWANSTON.

[1 CALIFORNIA, 51.]

DELIVERY OF CHATTELS SOLD AND PAYMENT OF PRICE ARE CONCURRENT Acrs when time and place of delivery are not agreed upon; and neither party can maintain an action for non-perforinance without showing readiness and willingness to perform.

STIPULATED PRICE OF CHATTELS ACTUALLY DELIVERED MAY BE RECOVERED, after deducting damages sustained by non-delivery, when the vendor can not deliver the whole of the quantity sold.

DAMAGES FOR EXPENSE INCURRED BY VENDEE, IN SENDING FOR AND NOT OBTAINING CHATTELS SOLD, may be recouped in an action by vendor for the price.

DAMAGES NOT LEGALLY RESULTING FROM BREACH OF CONTRACT ought not

to be allowed when not specially alleged; as damages for the vendee's inability to comply with the contract of resale because of non-delivery of chattels.

COSTS IN COURT BELOW ALLOWED Respondent, but Latter RequirED T PAY COSTS OF APPEAL, where judgment is affirmed in part and reversed in part.

APPEAL from the court of first instance of the district of Say Francisco. The plaintiff, through his agent, sold defendants fifty thousand three hundred and twenty-five feet of lumber, then supposed to be on board the ship Duchess Clarence in San Francisco harbor, at a price of one hundred and fifty dolars per thousand. Only twelve thousand nine hundred and fifty-eight feet were delivered, and the balance, which was seventeen thousand six hundred and forty-nine feet, instead of thirty-seven thousand three hundred and sixty-seven, as called for by the sale note, was sold by the plaintiff at auction, as it was claimed, on account of the defendants, for seven hundred and sixty dollars and seventy-two cents. The plaintiff never had, either on board the ship or elsewhere, a quantity greater than thirty thousand six hundred and seven feet, the amount he had delivered to the defendants, plus that he had sold at auction. The action was brought to recover the price of the lumber delivered, and also the difference between the net proceeds of the portion sold at auction and the contract price. The defendants, in their answer, admitted the receipt of twelve thousand nine hundred and fifty-eight feet, but claimed a right to recoup from the contract price of this quantity the expenses incurred by sending out lighters for the balance, and "other damages" sustained by reason of the non-delivery of the whole quantity. The defendants, it appeared, had several times sent out lighters to the ship for portions of the balance of the lumber, but were unable to procure any more. Some correspondence took place between the parties; the plaintiff complaining that the lumber was not removed; and the defendants that they desired to receive it, but were unable to get it; and finally that they would not receive any more, owing to the delay and expense in delivery; and that they would hold the plaintiff responsible for the expense incurred in non-delivery, and also for damages which might be recovered against them by purchasers to whom portions of the lumber had been resold, and for the profits on such resales. The referee, to whom the cause was referred, reported in plaintiff's favor for the fifty thousand three hundred and twenty-five feet, at one hundred and fifty dollars per thousand,

AM. DEO. VOL. LII-19