Hall v. Leigh. 8 C.

This cause comes here on a writ of error to the circuit court of the United States, for the district of Maryland.

This action was brought by the plaintiff, who was also plaintiff below, to recover the proceeds of 100 bags of cotton which had been shipped to the defendants, and by them sold on commission.

At the trial, it appeared that the plaintiff, together with William Potts & Co. in 1807, made a joint shipment of 200 bales of cotton to the address of the defendants, who resided at Liverpool, to make sale thereof for their joint benefit. This cotton belonged one half to the plaintiff, and the other half to William Potts & Co. The shipment was accompanied by two letters to the defendants, the one written by the plaintiff bearing date 14th February, 1807, in which after advising them of the shipment, he adds: " Mr. Potts has written you on the subject of his interest in this adventure; for myself I have to request that you will, after covering me in cost and charges, make such disposition of my one half the shipment as your own judgment may think best for my interest."

The other letter was written by William Potts & Co. and is dated 5th February, 1807, in which they also advised the defendants of the shipment which they say is "for account of Mr. Hall and ourselves each one half," and after directing what is to be done with their moiety, they observe that, " under present circumstances, Mr. Hall "will decline drawing on his proportion, as he wishes you to avoid selling at the present prices as long as possible—we refer you to him for more particular directions."

In another letter of the 13th April, 1807, the plaintiff directed the defendants that, after effecting sales of his half of the cotton, on the terms of his first letter, they should pass the net proceeds of his proportion to the credit of Messrs. W. Potts & Co. and furnish him with sales and account current as soon as possible, [52] to enable him to settle with those gentlemen here."

After the receipt of these letters, the defendant on the 5th June, 1807, sold 100 bags of the cotton on account of William Potts & Co. at 17d. sterling per pound, and immediately advised them thereof. The defendants afterwards, that is on the 31st December, 1807, had the remaining 100 bags of cotton, valued at 14d. sterling per pound, at which price they took it to themselves, and carried the amount to the credit of William Potts & Co., and on the 1st of March following, sold them at a higher price. The plaintiff, thinking the defendant guilty of a breach of orders, brought this action to recover damage, and on the preceding evidence, the circuit court was of opinion that he could not separately maintain an action against them, on which a verdict and judgment passed against him.

Pleasants v. Maryland Insurance Co. 8 C.

Although the purchase of this cotton was on the joint account of the plaintiff, and of William Potts & Co., yet as, in its shipment to the defendants, their distinct interests were not only disclosed, but as separate and variant instructions were given as to the disposal of it, and as, under these directions, the defendants acted thoughout the whole of their agency in this business, it is not easy to perceive on what ground they now allege that they can be liable only in a joint action in the names of the present plaintiff, and of William Potts & Co. By their own conduct they have precluded themselves from every objection of this nature, for they have contracted, as to the one half of this property, with the plaintiff, and as to the other moiety, with William Potts & Co., and it will be seen by a recurrence to the testimony, not only that their engagements with these parties are distinct, but of different kinds. In selling the proportion of W. Potts & Co. they had a discretion, but over the other they had no right to sell for less than cost and charges. This court, therefore, is of opinion that the action was well brought, and that the judgment of the circuit court was erroneous, and must be reversed.

[53] THE COMMON COUNCIL OF ALEXANDRIA v. PRESTON.

8 C. 53.

In this case, the circuit court for the District of Columbia had ruled, that a purchaser of real estate in the city of Alexandria, was not liable for taxes assessed thereon before he became owner thereof, and, upon error, this court affirmed the judgment, without assigning any reasons.

[55] PLEASANTS V. THE MARYLAND INSURANCE COMPANY.

8 C. 55.

If a cargo be insured in several different policies, and in one the invoice ruble is valued, and in others not, in adjusting a loss under the valued policy, the cost of the whole cargo is to be brought into dollars, reckoning the ruble at its agreed value, and the amounts actually paid under the other policies being deducted, the residue of the loss is the amount due.

Pleasants v. Maryland Insurance Co. 8 C.

ERROR to the circuit court for the district of Maryland. The case is stated in the opinion of the court.

Harper, for the plaintiff.

Jones and Pinkney, for the defendant.

*JOHNSON, J., delivered the opinion of the court, as fol- [ 57 ] lows:

This is the case of an insurance on a voyage from St. Petersburg, or Cronstadt, to Philadelphia, effected in the year 1810. The vessel was captured and the assured abandoned. The only difficulty arises on the principles upon which the loss shall be adjusted.

Besides this policy, eight others were effected in Philadelphia. In seven of them no valuation was attached to the ruble. In the eighth it was valued at 40 cents, and on this, which was the ninth in order, at 46 cents. In settling the first seven, the ruble was estimated at 33 cents, which was the received value at Philadelphia. On the eighth, it was settled at the stipulated value of 40 cents. The value of goods laden on board the ship was proved to be 95,565 rubles. The sums paid on the first eight policies corresponded to the adjusted value of 94,084 rubles, leaving a balance of only 1,481; equal, at 46 cents, to about $682 unpaid. But if the whole amount of the cargo be brought into dollars at 46 cents to the ruble, and [ the sum in dollars actually paid on the other policies be deducted, there will still remain more unpaid than would exhaust the whole sum underwritten on the ninth policy.

* 58 ]

On the part of the defendant it is contended that the compensation paid to the plaintiff on the other policies, is absolute and complete, as to the corresponding amount in rubles, leaving only 1,481 unpaid. On the other hand, the plaintiff contends that the compensation was only relative, and cannot affect his rights as between himself and this defendant. And of this opinion is the majority of

the court.

The object to be attained is, to secure to the assured a fair indemnity under all the advantages which he has purchased of the insurers. The intention of the parties, in attaching a fixed value to the ruble, appears in the order for insurance, to wit: "to distinguish between the paper and specie ruble."

It is very well known that the ruble is the money of account in Russia. It was originally a coin corresponding in value to the American dollar. But by the forced circulation of a paper representative of the ruble, dependent on nothing ut mere national faith or national

M'Call v. Marine Insurance Co. 8 C.

force for its value, the silver ruble has nominally doubled or trebled itself in value. The astonishing and rapid fluctuation in its value appears from the evidence in this case, in which it is stated that in the 1810 it varied from 48 to 25 cents.

year

To secure the assured against the effects of this fluctuation, was the object of the parties in attaching a specific value to the ruble; and as the whole cargo would be affected in value by this cause, and the policy was upon the cargo generally, we are of opinion that no other principle in calculating the loss would afford him the indemnity stipulated for in the policy.

Had the

The principle contended for by the defendant is subject to [ 59] this obvious objection, that it is not reciprocal. adjustment of the value of the ruble in the other cases exceeded 46 cents, that adjustment would not in any respect have resulted to his benefit.

There is one difficulty of which the court are fully aware, which is, that the interest assigned in the abandonment, if estimated in rubles, will be inversely as the rate at which the ruble is estimated, so that he who pays most would acquire least. But in this case the objection does not arise; as the plaintiff by a compromise with the underwriters on some of the other policies has reserved a sufficient interest in the subject of abandonment, to meet the just claims of these underwriters. And in no case would this consideration create a difficulty as between the parties to a policy. Among the underwriters alone in the distribution of the proceeds of the thing abandoned, would it be necessary to determine on the correct rule to be applied in such a case.

Had the policy, which is the subject of this suit, been a valued policy, and declared the value of the whole cargo to be $43,929, the actual amount at the stipulated valuation of the ruble, the same objection would have presented itself, but certainly would not have availed to prevent a recovery.

The judgment below must therefore be reversed, and the case remanded

M'CALL et al. v. THE MARINE INSURANCE COMPANY.

8 C. 59.

Under a policy insuring against "unlawful arrests, restraints, and detainments," the assured cannot abandon on account of restraint of the vessel from entering a blockaded port, the voyage being thereby broken up, because such restraint is not unlawful.

M'Call v. Marine Insurance Co. 8 C.

ERROR to the circuit court for the district of Maryland.

This was an action on a policy underwritten by the defendants, upon all kinds of lawful goods and merchandise, on board the ship Cordelia, on a voyage from the island of Teneriffe,

to Surabaya, and at and from thence to Philadelphia, [ *60 ] warranted American property. The ship sailed on the voyage, on the 5th of April, 1811, having on board a cargo of lawful goods, the property of the plaintiffs, of the value of 15,000 dollars, and pursued the voyage until the 18th of July following, when, being in a place called Madura Bay, within about twelve hours sail of Surabaya, she was boarded by an officer of a British frigate, forming one of a squadron, then actually blockading the port of Surabaya, and all the other ports of the islands of Java and Madura. The frigate took possession of The Cordelia, and conducted her to the admiral commanding the blockading squadron, who, on the next day, dismissed The Cordelia, after indorsing her papers, and warning the master not to enter the port of Surabaya, or any other port in the island of Java, or of the island of Madura, on pain of capture. On the same day, The Cordelia made another attempt to enter Surabaya, but was chased by the same British frigate, and taken possession of a second time. After being detained two days, The Cordelia was again released, and the master was ordered to depart instantly from the coast of Java, and the neighborhood of Surabaya, upon penalty of capture, and impressment of his men. The master, finding it impracticable to pursue his voyage further, resolved to return to Philadelphia, where he arrived on the 19th of November, 1811.

time of sailing on the voyage from Teneriffe, the blockade of Java was unknown to the parties. The plaintiffs abandoned to the defendants, immediately after the arrival of The Cordelia at Philadelphia, which gave them the first knowledge of the occurrences. defendants refused to accept the abandonment.

The

The policy contained the usual risks, except that the word, “unlawful," was printed before " arrests," so that the clause stood, "unlawful arrests, restraints, and detainments of all kings, princes, or people of what nation, condition, or quality soever." The declaration alleges, that the ship and cargo, were, during the voyage, " by persons acting under the authority of the British government, and by a certain ship of war belonging to that government, unlawfully seized, restrained, and detained," and thereby become totally lost.

The circuit court directed the jury, that, on this state of [61] facts, the plaintiffs were not in law entitled to recover; to which the plaintiffs excepted and brought this writ of error.