Page:North Dakota Reports (vol. 1).pdf/489

 done for the safety of both the vessel and the cargo, and was essential to their safety, as it is undisputed that the risk to both from the breaking up of the ice in the spring would have been greater with the steamer loaded than with the cargo on shore. It was the undoubted duty of the master to do precisely what he did do to protect the interests not only of the owner of the cargo, but the owner of the boat also. “Suppose a ship meets with a calamity in the course of a voyage, and is compelled to put into a port to repair, and there the cargo is required to be unloaded in order to make the repairs or to insure its safety or ascertain and repair the damage done to it, would such an unloading dissolve the contract for the voyage? Certainly not.” Per Story, J., in The Nathaniel Hooper, 3 Sum. 542-559. See, also, Murray v. Insurance Co., 4 Biss. 417. We hold that full freight was earned.

But the plaintiffs right to maintain this action is challenged. It is insisted that he is not the proper person to sue for such freight. The action stands on a written contract of affreightment. We must look at it to discuss this point intelligently. It is in the following form: “Bismarck, D.T., Nov. 3, 1880. Capt. W. Braithwaite, Steamer Eclipse—Dear Sir: On your accepting this proposition we agree to give you $1.75 per one hundred. pounds from Bismarck to Ft. Buford on freight up to the amount of one hundred tons, and all over and above one hundred tons $1.50 for one hundred pounds; receipt to be equal to one hundred tons to Buford; freight to be paid on receipt of bills of lading by draft at ten days’ sight on Jos. Leighton, St. Paul. Yours, etc., J. C. Barr, Agt. for H. C. Aikin, Jos. Leighton and Benton Line.” Across the face of this the acceptance of the proposition was endorsed in the following words: “Str. Eclipse, W. Braithwaite, Master.” Can the plaintiff maintain this action upon this contract? Our statute, taken from New York, provides that an action may be brought in the name of the trustee of an express trust alone, and that every person in whose name a contract is made for the benefit of another is such trustee. § 4872, Compiled Laws. In view of the construction placed upon this legislation it is unimportant whether we consider this as a contract in which the words of agency are merely descriptive of the person contracting or whether we regard the