McGLOIN vs. HENDERSON AND JOHNSON, 6 La. 715

Bullard, J., delivered the opinion of the court. The plain tiff sues the owners of the schooner Messenger, to recover back the sum of three hundred and fifty dollars paid by him on a contract of charter-party, together with one thousand dollars, the penalty stipulated in the contract in case of its non performance. The charty-party shows that the owners had let to freight the hold of the schooner for a voyage to be made from New-York, to Aransasua in Texas, then to be discharged, the dangers of the sea excepted.

The The charterer was authorised to load and put on board a loading of such goods and merchandise as he should think proper, contraband goods excepted. He engaged to pay seven hundred dollars for the freight or hire of the schooner, one half to be paid before sailing, and the balance on the arrival of the schooner .at the place of her destination. He further engaged to pay one half of the port charges and and pilotage; and was at liberty to put four passengers in the cabin.

The parties further bound themselves, mutually to pay a penalty of a thousand dollars, in case of non performance of the stipulations of the contract. It appears that one half of the hire was advanced, and the schooner sailed at the time agreed on loaded with emigrants, accompainied by the charterer, but did not enter her port of destination; on the contrary after making an attempt to enter the captain steered for, and ultimately reached the port ofNew-Qrleans. The defendants admit the execution of the charter-party, but deny any breach of the contract.

They demand in reconvention a judgment for the balance of the hire or freight, alleging that the completion of the voyage, was prevented first, by the misinformation given McGloin, the plaintiff, who represented, that he was capable of piloting the vessel into port, and, secondly, by his menaces and violence, and attempts to stir up mutiny among the pasgers and crew and to run the vessel on shore. They claim also one hundred dollars for four additional cabin not passengers beyond the number stipulated for.

It is pretended that the loss of the voyage was occasioned by perils of the sea, and the only question is, whether it was broken up by the fault of the charterer himself. w|)Cn passengers in a vessel a'ediSJn?ep0rt sent'’“to” that £eof°nsdiing® b° haTlÓ? the passage money.11 The evidence is somewhat contradictory, but there are some facts about which there is no dispute. First: that after making an unsuccessful attempt to cross the bar of the port of Aransasua, the captain refused to make another attempt, or wait on the coast for more favorable weather, or to send out a boat to sound the channel.

Secondly: that no actual attempt at violence was made. Thirdly: that the captain refused to put into some port of Texas, though urged to do so by the charterer, but persisted, notwithstanding his remontrances, to come to New-Orleans. The captain himself admits that after the attempt to enter Aransasua, when in the latitude of Matamoros, the plaintiff proposed to go there. The distance was one hundred or a hundred and fifty miles, and they were then three hundred miles from the Mississippi. If the captain had complied with this request, it would probably have been a virtual compliance with the contract.

The charterer at any rate professed his readiness to accept it as such. He cannot, therefore, say that he has been prevented from earning the freight by the fault of the charterer. No menaces are proved to have been made until after the master had declared his determiation to sail for New-Orleans. The passengers had no right to interfere, and the request of a part of them to be conveyed to New-Orleans, amounts to nothing. Their contract was with the charterer and not with the captain and owners.

The defendants we think have failed to show that they were prevented, from performing their contract, either by the perils of the sea, or by the fault of the plaintiff. The claim on the part of the defendants, for one hundred x . dollars,’ for the four additional passengers in the cabin cannot be sustained. We are to presume that their passage was to be from New-York to Aransasua, and not to New-Orleans. Not having been conveyed thither, no passage money is due.

It has been coutended that the plaintiff is not antitied to recover back the money already paid, and the defendant’s counsel relies on the authority of Abbott, on shipping, p. 277. But the case there mentioned turned on the principle that the non-performance was owing to the neglect or default of the party claiming to be refunded. We do not think the CaSe applicable to this. mvnersVheof ‘’'a ntD00‘to deliver pSídaí8 place sum, in the penalty of one thousand dollars, tta fault'of “lie penaity^is^tiiereby forfeited and will be recovered.

A penai clause in a contract fixing the amount of damages in case of its non-performance by either party is reciprocal, and must be enforced on this principle, and nothing more or less than the penalty fixed can be recovered. But where a penal clause in a contract fixes the amount of damages in case of non-performance by either party, and there is a part performance by one of them, the court may modify the penalty accordingly.

So where one party advances half the sum stipulated in the performance of a contract, which has a penal clause of one thousand dollars in case of failure, and the other party fails to complete his part, the former cannot recover back the sum advanced and the penalty too; he can only recover the penalty. The plaintiff obtained a re-hearing in this case on the ground of error in the first judgment.

The owners having failed to comply with their contract, have forfeited the stipulated penalty, and are bound to reiund. what has been already paid. ft is? therefore, ordered, adjudged and decreed, that the judgment of the Parish Court, be affirmed with costs.