ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Winder, contrà.

Willinks v. Hollingsworth. 6 W.

* STORY, J., delivered the opinion of the court.

[ * 238 ]

In this case, if the cause had stood solely upon the evidence before the circuit court, we should have no difficulty in affirming its decision. But upon the new proofs which have been since taken, and are now produced to this court, it is apparent that the capturing vessel was originally built, equipped, manned, and armed in the United States for a cruise, being owned by citizens of this country, and sailed with the intent of cruis- [* 239 ] ing against Spain. It is true that she went to Buenos Ayres, and sailed under the colors of that government on a second cruise, during which this capture was made; but there is no satisfactory evidence that the American ownership ever ceased, or that there was a real bona fide sale at Buenos Ayres. If such a sale had really taken place, it was perfectly in the power of the captors to have proved it in the clearest manner. A bill of sale is the customary and universal document by which the ownership of vessels is evidenced; and the want of any document of this nature, or of any direct and positive evidence of an actual sale, leaves no doubt in the mind of the court, that no such sale ever was made. The consequence is, that the capturing vessel must still be considered as owned in the United States; and, according to the decisions which have already been made, the capture was illegal, and the property must be restored to the original Spanish owners. Sentence reversed.

WILLINKS v. HOLLINGSWORTH et al.

6 W. 240.

A consignee abroad having purchased a return cargo and consigned it to the principal, who objected to the purchase, but received and sold the cargo, an action by the consignee, for money had and received, will lie to recover the proceeds of the sales.

In that action the defendant can not recoupe damages for breach of his orders.

THIS was an action of assumpsit, brought in the circuit court of the United States for Maryland, by the plaintiffs, who were merchants of Amsterdam, to recover from the defendants, merchants of Baltimore, a sum of money advanced by the plaintiff's in

*

Amsterdam, for the cargo of The Henry Clay, a vessel [*241] belonging to the defendants, which had been consigned by

them to the plaintiffs, with an outward cargo, and with orders respecting her ulterior destination, which showed that on the failure of getting a freight to Batavia, or of selling her at Amsterdam, she was to go to St. Petersburg, and there take in a return cargo of Rus

[blocks in formation]

Willinks v. Hollingsworth. 6 W.

sian goods for the United States. The plaintiffs purchased in Amsterdam, with the concurrence of the master, a return cargo for the Henry Clay, partly with the money of the defendants, and partly with money advanced by themselves. On her arrival at Baltimore, the defendants objected to the purchase of this cargo in Amsterdam, as being contrary to express orders, and immediately gave notice to the plaintiffs of their disapprobation of the transaction, and of their determination to hold them responsible for all losses sustained in consequence of this departure from instructions. They, however, received the cargo and sold it.

The declaration contained three counts: the first, for money lent and advanced to the defendants; the second, for money laid out and expended for their use; and the third, for money received by them for the use of the plaintiffs.

On the trial of the cause in the circuit court, the defendants prayed the court to instruct the jury, that upon the whole evidence, which is spread on the record, "the plaintiff's have not any demand in law

against the defendants which can be maintained in this ac[242] tion; but that, if they have, the defendants are entitled to a deduction from the same, of the amount of the loss which the jury shall find the said defendants sustained, by reason of the alteration aforesaid, in the destination to St. Petersburg, of the said ship, and the loading her as aforesaid at Amsterdam." On this motion the judges were divided in opinion, and the division certified to this court.

The evidence principally consisted of two letters, dated the 29th of April, 1815, written by M'Kim, one of the defendants, addressed, the one to the plaintiffs, the other to the master of The Henry Clay. That to the plaintiffs was as follows:

"Gentlemen: The owners of the ship Henry Clay having appointed me the ship's husband for this voyage, and from the introduction of our mutual friends, Robert Gilmor and Sons, I have been directed by the owners to consign the ship to your house; also that part of her cargo which I consider belongs to her owners jointly, agreeable to the invoice, amounting to $1,363.40.

"You will find that the owners of the ship have shipped tobacco on their separate accounts; the proceeds are to be placed to the credit of John M'Kim, jun., to remain a fund for the purpose of loading the ship if she should proceed to St. Petersburg. The freight and pri mage, and also Captain Charles Gantt's bills, which are now inclosed, drawn on you for the sum of 6,550 guilders, are to constitute part of the funds for the loading of the ship.

Willinks v. Hollingsworth. 6 W.

"Our wish is, in the first place, if a good freight or char

[ocr errors]

ter can be had for the ship to Batavia, that she should [243] proceed there in preference to any other place.

"And, secondly, if the ship can be sold for £8,000 sterling, you will dispose of her rather than send her to St. Petersburg."

The letter then proceeds to give such a description of the ship as might enhance her value in the estimation of a purchaser, and then adds: "If The Henry Clay proceeds to St. Petersburg, we must depend on your placing funds there to purchase a cargo of iron, hemp, and other goods. If the funds we have placed in your hands should fall short of loading her, Messrs. Gilmor and Sons have written you to make us any advances that may be deficient. Agreeable to the estimate, what we have ordered from St. Petersburg will not exceed $45,000, and you may rest assured that any sum advanced us will be remitted to you as soon as we know the amount." The letter to the master was in these words:

"Dear Sir: The ship Henry Clay is given you in charge, that you proceed with all possible dispatch for Amsterdam, and it is recommended that you sail north-about at this fine season of the year. The owners of the ship have the greatest confidence in your good management; that you will take care that your disbursements in every foreign port may be as moderate as possible; that you will purchase every article yourself, on the lowest terms, that may be required for the ship; that you will use the greatest economy in all your expenditures. After your arrival at Amsterdam, your first object is a good charter for Batavia, and if what you [244 ] know to be a good charter is obtained, you will of course accept it in preference to any thing else.

"And if a good freight cannot be had to Batavia, and the ship can be sold for £8,000 sterling, you have orders to sell her, and we confidently expect that she will bring more, as she cost upwards of £14,000 sterling, and never made one voyage. I hope that every exertion will be made to proceed to St. Petersburg immediately, if you do not go to Batavia, and the ship cannot be sold; as the season is far advanced, no time must be lost. The same industry must be used to get away from St. Petersburg, for fear that you might be detained there all the winter. The owners must also depend on your attention at St. Petersburg, that the hemp is good that you receive." The letter then gives instructions respecting pilots, protests, &c., and then adds: "Messrs. Willinks will of course endeavour to consign the ship to a friend of theirs at St. Petersburg, but we have great confidence

Willinks v. Hollingsworth. 6 W.

in a house recommended by Mr. Cumberland D. Williams, Messrs. Meyer and Buxner, and we could wish you to consign the ship to them. If any freight should offer from St. Petersburg to Baltimore, of course you will accept of it, and if any goods for Philadelphia or New York should be there, you can inform the shippers how easy they may be sent," &c.

It was also proved that no freight to Batavia could be obtained, and that the vessel could not be sold at the price limited.

Harper and Winder, for the plaintiffs.

Pinkney and D. B. Ogden, contrà.

MARSHALL, C. J., delivered the opinion of the court, and after stating the facts, proceeded as follows:

On the first branch of the question certified from the circuit court, no doubt can be entertained. The defendants having received the cargo of The Henry Clay, and sold it, are accountable for the proceeds, although the cargo should be considered as the property of the plaintiffs. Whether the defendants are liable for the moneys actually advanced in Amsterdam, or for the net amount of sales in Baltimore, considering the goods as the property of the plaintiffs, still, they are liable for something; and, of consequence, the action is sustainable.

[* 252 ] *In deciding on the second branch of the instructions which were required, it becomes material to examine the orders which were carried out by The Henry Clay on her voyage, from Baltimore to Amsterdam, contained in the letters of the 25th of April, the one to the plaintiffs, the other to the master.

It is admitted that no freight to Batavia could be obtained, and that the vessel could not be sold at the limited price; consequently, the only deviation from orders alleged by the defendants is, the purchase of the Russian goods for the return cargo at Amsterdam, instead of sending The Henry Clay to St. Petersburg.

That the orders of the defendants to send their ship to St. Petersburg, in the event which had occurred, were positive; and that no authority was given to purchase her return cargo at Amsterdam, under any circumstances, are too apparent for controversy. That this purchase, thus made without authority, whether with or without the consent and concurrence of the master, must have been made at the risk of the plaintiffs, is also too clear for argument. But the liability of the plaintiffs for any loss which the defendants may have sustained

Willinks v. Hollingsworth. 6 W.

by the breaking up of the voyage to St. Petersburg, depends on the question, whether the control of that voyage was committed to them, or to the master. In considering this question, it is proper to take into view all the instructions which were given, and to compare the two letters written by the defendants with each other. In the commencement of the letter written by Mr. M'Kim, [* 253 ] on the part of the defendants, he says: "I have been directed by the owners to consign the ship to your house, also that part of the cargo which I consider belongs to the owners jointly."

Whether this consignment was limited to the transactions in Amsterdam, or extended to any subsequent voyage in which The Henry Clay might be directed to engage, depends on other parts of the letter.

Mr. M'Kim then proceeds to direct that certain parts of the outward cargo should "remain as a fund for the purpose of loading the ship, if she should proceed to St. Petersburg."

These orders are precise and explicit, with respect to the funds which are to remain in the hands of the plaintiffs for the purchase of the cargo in St. Petersburg, but are silent respecting any agency of the plaintiffs in making that purchase.

After communicating the desire of the defendants, that a freight should be obtained for Batavia, the letter proceeds to say: "and secondly, if the ship can be sold for £8,000 sterling, you will dispose of her rather than send her to St. Petersburg."

This part of the letter may indicate, that in some other part of it might be found an express order to send The Henry Clay to St. Petersburg, if the primary objects of the defendants should be unattainable, but does not in itself amount to such express order. The writer does not say: "We request you, if the vessel cannot be sold, to send her to St. Petersburg;" but, "you will dispose of her, rather than send her to St. Petersburg; as if there were some authority not communicated by these words, to which [254] they have allusion. There is no such authority, unless it be implied in the general consignment of the vessel.

[ocr errors]

That consignment is completely satisfied by the agency which was to be exercised in Amsterdam. If it was designed to extend it to the eventual voyage to St. Petersburg, the Messrs. Willinks would naturally expect to find some instructions respecting that voyage; respecting the articles of which the cargo was to consist, and their conduct in the purchase of them. But they could find no such instructions. In a subsequent part of the letter, Mr. M'Kim states the estimated value of the cargo he had ordered, and is explicit in his request, that they would advance the necessary funds for laying

« ÀÌÀü°è¼Ó »