combined harvesters are as clearly implements of husbandry as are handrakes, single plows, sickles, cradles, flails, or an oldfashioned machine for winnowing. There is no ground for excluding an implement from the operation of the statute because it is an improvement, and supplants a former implement used with less effectiveness for the same purpose;" and as the legislature had not placed any limitation upon the character of the implements of husbandry, or their value, courts have no right to exclude them from the operation of the statute.

539 The threshing outfit did not cease to be exempt from execution by reason of the fact that it was usually the custom for the plaintiff to use it for hire to thresh the crops of others after doing his own threshing. At the time the property was seized it was in use by the plaintiff, and the court finds that all of it was necessary for his use in farming his land. In Baldwin's case, 71 Cal. 74, it was held that the legislature meant by the foregoing exemption such utensils or implements as are needed and used by the farmer in conducting his own farming operations; and in Stanton v. French,91 Cal. 277,25 Am. St. Rep. 174, it was held that the debtor is not required to use the exempt property exclusively in his customary vocation. It would be a hard rule upon the debtor to hold that, although the property was necessary for properly carrying on his farming, he would forfeit the exemption should he seek to earn something with it after he had ceased to need it for his own farming. A better suggestion would be that, if, in the opinion of the creditor, he is cultivating more land than he needs, he could satisfy his debt by levying his execution upon the land itself.

The judgment is reversed and a new trial ordered.

Van Fleet, J., and Garoutte, J. concurred.

EXECUTIONS-EXEMPTIONS-FARMING UTENSILS.-In the exemption of tools or implements of a debtor's occupation, the distinction between simple instruments and machines of a complicated nature has often been noted in excluding the latter from the benefits of the exemption laws. Thus a threshing machine was held not a "proper tool or implement of a farmer," under a statute limiting the value of exempted articles, beyond which the thresher did not go: See monographic note to Kilburn v. Demming, 21 Am. Dec. 552. It has been previously held in California that under the statute construed in the principal case, the value of the property claimed as exempt is not material, and that under it a judgment debtor may hold as exempt a combined harvester costing fifteen hundred dollars, though comparatively few farmers own such a harvester: Estate of Klemp, 119 Cal. 41; 63 Am. St. Rep. 69, and note.

KERRY V. PACIFIC MARINE COMPANY.

[121 CALIFORNIA, 561.]

SHIPPING-CARRIERS' IMPLIED OBLIGATION TO DELIVER IN GOOD CONDITION.-Where a carrier having complete control of a vessel agrees to receive a cargo in one place and to transport it to, and deliver it at, another, there is an obligation implied that the loading and unloading of the cargo shall be so conducted by the carrier that no unnecessary injury shall be done thereto.

SHIPPING-CHARTER PARTY-WHO IS OWNER FOR THE VOYAGE SO AS TO BE LIABLE FOR BREACHES OF DUTY.-A charter party stipulating that one of the parties thereto will furnish a vessel and keep it in good condition during a voyage, that it will receive a specific cargo and deliver it at the port of destination, that the whole of the vessel except certain parts for the use of the crew shall be at the sole use of the other party, who shall pay certain specified rates, does not make the owner or shipper of the cargo the owner of the voyage. On the contrary, the party furnishing the vessel is such owner, and, as such, liable for any breach of duty respecting the care, loading, and unloading of the cargo.

SHIPPING.-ONE PURPORTING TO ENTER INTO A CHARTER PARTY AS MANAGING OWNER OF A VESSEL, and who in fact owns nine-sixteenths thereof, is personally liable under such charter party for any breach thereof or of its implied obligations, where it does not disclose the name of any principal for whom such managing owner acts as agent.

SHIPPING-PART OWNERS-LIABILITY OF.-If an action is brought against a part owner upon a contract relating to a ship, and he does not, by proper plea, object that the other owners are not joined with him, the plaintiff may recover his whole demand of such joint owner, who, on his part, may afterward pursue the others for contribution.

SHIPPING.-The act of Congress, limiting the liability of part owners of vessels, does not prohibit their contracting so as to be answerable for the entire damage which may result from a breach of the contract. If any of them does so contract, such act of Congress does not relieve him.

DAMAGES-PLEADING-GENERAL ALLEGATION CONTROLLED BY SPECIFIC AVERMENTS.-If a complaint seeking to recover damages for an injury to piles states that the plaintiff was obliged to sell such piles at nine and one-half cents per foot, whereas they would have been worth fourteen cents per foot but for the wrongs complained of, and contains a general averment that by the acts complained of the plaintiff was damaged in the sum of three thousand dollars, the special averment controls, and plaintiff cannot recover any sum in excess of four and a half cents for each foot of such piles.

APPELLATE PRACTICE-MODIFYING JUDGMENT INSTEAD OF DIRECTING A NEW TRIAL.-If, in an action to recover damages the trial court enters judgment for a sum greater than warranted by the allegations of the complaint, but the findings necessarily show such allegations are true, the judgment may be modified in the appellate court by striking off the excess and affirming as to the residue.

AM. ST. REP., VOL LXVI-5

Naphtaly, Freidenrich & Ackerman, for the appellant.

W. H. Fowler and D. H. Whittemore, for the respondent.

565 THE COURT. Action on a charter-party by which de fendant undertook to carry for plaintiff, in the bark "Templar," a cargo of piles from Seattle to San Francisco. Damages are claimed as resulting from the careless and negligent handling of the piles while being loaded and unloaded, whereby the bark on them became peeled off, thus diminishing their value. Plaintiff had judgment for two thousand three hundred and ninety dollars, from which and from the order denying a new trial defendant appeals. The pleadings are verified.

The complaint alleges that defendant is a corporation, and 566 "as managing owner of the bark 'Templar' of San Francisco entered into a contract of charter-party with plaintiff, whereby it was covenanted and agreed that the said bark "Templar' should be chartered, et cetera. . . . . That defendant agreed to keep said vessel during said voyage tight, staunch, and well fitted; that she was to receive the said piles and short storage as aforesaid, carry the same and deliver them at the port of San Francisco in good marketable condition and in as good order and condition as they received the same," et cetera. The charter-party purports to be "between the Pacific Marine Supply Company of San Francisco, California, party of the first part, managing owner of the bark "Templar' of San Francisco, . and A. S. Kerry, of Seattle, Washington, of the second part.” By the terms of the charter-party the first party agreed "on the freighting and chartering of the said vessel unto the said party of the second part from a voyage from the port of Seattle, Washington, to San Francisco, California, on the terms following": (1) That the vessel should be kept tight and staunch, et cetera, and well supplied with men and provisions; (2) that all the vessel, except certain portions for the use of the crew, should be at the sole use of plaintiff; and defendant agreed (3) to take and receive on board the same vessel during the voyage;" then follow the agreements entered into by plaintiff as to cargo to be furnished, the size of piles at the butt; rate of payment per lineal foot, regulations as to discharging cargo, et cetera. The contract is signed as follows: "Pacific Marine Supply Company, Alfred Greenebaum, Manager, D. M. Kennedy, Agent for A. S. Kerry."

1. It is contended by defendant that the action is based up

on the breach of the written contract, which nowhere in terms provides that defendant agreed to deliver the piles in good order and condition as received, and unless there was such implied promise plaintiff cannot recover; that allegations and proofs must agree, and the proofs must disclose the cause of action which is alleged in the complaint (citing Barrere v. Somps, 113 Cal. 97); and it is claimed that there is a total failure of proofs upon this point. The contract does not provide in terms for the safe delivery of the cargo; but the court found that "defendant agreed that the said vessel should receive the said piles, 567 and carry the same and deliver them at the port. of San Francisco in good marketable condition and in as good condition as it received the same." The court also found that the piles when received were in good and marketable condition. These findings are challenged as not supported by the evidence. The court also found that the "defendant was the owner of ninesixteenths of said vessel and was the manager thereof; that as such owner, and as agent of the owners of the other seven-sixteenths, said defendant made said charter."

It appears in evidence that a receipt for the cargo was signed by John Lee, master (who was also a part owner), which reads: "Seattle, Wash., August 29, 1893. Received from A. S. Kerry, on board the bark "Templar,' the following packages, contents unknown, to be delivered at San Francisco, Cal., . . . and with privilege of reshipping on steamboats or barges." Then follows description of cargo.

Defendant by the contract itself let not only the vessel in proper condition "and provided with every requisite" for the service, but it also agreed to furnish "men and provisions necessary for the voyage," and defendant engaged "to take and receive on board the same vessel during the aforesaid voyage," the entire vessel (except cabin, deck, and room for the crew and stowage for sails, cables, and provisions) "to be at the sole use and disposal of plaintiff. The compensation was fixed by a rate to be charged per lineal foot of the piles and a certain rate for other lumber. Lay days were provided for in loading and unloading, beyond which plaintiff was to pay forty dollars per day for detention. Defendant agreed to receive cargo "delivered alongside of the vessel within reach of her tackles," and the charter was to commence "when the vessel is ready to receive cargo at her place of loading and notice thereof is given," and not at San Francisco where she was when chartered. The receipt given shows that the cargo was received on board ship by

the master, "to be delivered at San Francisco." The evidence showed that the loading and unloading was done by the crew of the vessel, under the direction of the master, who had entire charge and command of the ship. It is evident, we think, that the entire control and management of the vessel and the loading and unloading of the cargo were in the hands 568 of defendant. Plaintiff was to pay freight at fixed rates on the cargo when delivered. In such contract as this, there is, we think, an implied obligation that in loading and unloading cargo it shall be so done as not to cause unnecessary injury to the merchandise; and for injury resulting from the negligence of the carrier there is an implied liability: Civ. Code, sec. 2114. It was not necessary, therefore, for plaintiff to prove an express stipulation in the written contract that the freight was to be delivered in good condition.

The question, who is to be considered as owner for the voyage in cases of charter-party, so as to create a liability for repairs or breaches of duty, has been often litigated in England and America. The principles upon which the cases rest will be found discussed in Abbott on Shipping, part 1, chapter 1, section 8. In a question of construction it is not possible to lay down any rule of universal application, but Mr. Abbott says: "It seems to result from the cases decided upon this subject that when, by the terms of the charter-party, the master and mariners are to continue subject to the orders of the shipowner, he retaining through them the possession, management, and control of the vessel, it is to be considered a contract to carry the freighter's goods, but where the merchant engages to pay a stipulated price to the shipowner for the use of his ship, for the voyage, by the month or year-takes it and them into his service-receiving the freight actually earned by it to his own use, the master and mariners becoming subject to his orders, and the general management and control of them and the vessel being given up to him, it is a demise of the vessel with her crew for the voyage, or the term specified; the charterer becomes owner pro hac vice, entitled to the rights and subject to the responsibilities which attach to the character." In the case of Marcardier v. Chesapeake Ins. Co., 8 Cranch, 39, it was said: "Where the general owner retains the possession, command, and navigation of the ship, and contracts to carry a cargo on freight for the voyage, the charter-party is considered a mere affreightment sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership." It cer

い