Page:North Dakota Reports (vol. 1).pdf/482

signed. Were there no other facts in the history of this case, the judgment of this court must condemn the recovery of any amount, A contract of affreightment is subject to the general rule of law that the person who claims compensation must perform every condition precedent of an entire contract before his claim for any amount will be heeded. Part performance will not entitle him to pro rata pay, unless such incomplete performance is voluntarily accepted by the one entitled to insist on perfect compliance with all the terms of the contract, under such circumstances that the law will imply a promise to pay for that which has been done. It is upon this principle that the adjudications stand allowing freight pro rata ttineris. Pars. Merc. Law, 350; Transportation Co. v. Hoyt, 69 N. Y. 280; McGaw v. Insurance Co., 23 Pick. 405-411; Coffin v. Storer, 5 Mass. 252; The Nathaniel Hooper, 3 Sum. 542. This doctrine, with its limitation, is embodied in our Code. § 3868, Comp. Laws. But it is here insisted that full freight was properly allowed, and the statement of additional facts is necessary that we may weigh the full force and merit of this contention. When the master of the steamer discovered that to proceed further on the voyage was impossible, he immediately began to prepare a safe place for the cargo on the shore, with the intention of afterwards taking steps to complete the transportation, and make delivery at Ft. Buford, as required by his contract. Two days were occupied in unloading, and on the following day the consignee appeared in the person of the officer of the day of the fort, and demanded the carog. It is evident that in so short atime the master of the steamer had had no opportunity to make arrangements for completing the transportation. He was not then in default, unless he had refused to proceed further with the goods, which is not pretended, or perhaps unless the voyage had been interrupted because of his own careless act. We are not apprised that any negligence of his in this respect is claimed, nor do we find in the record anything to warrant such a contention. The voyage was suspended ‘ -t a time by an act beyond the power of man to control. But the ability to complete the transportation was not necessarily gone; nor does the disposition to perform his contract seem to have