19 Johns. 137 | N.Y. Sup. Ct. | 1821
delivered the opinion of the Court.
On the part of the plaintiffs, I think the contract was'duly proved, and also that they delivered the quantity of timber according to contract, viz. to the defendant’s agent, Niel Livingston, who resided during the spring and summer of 1812, at French Mills, in the county of Franklin. The evidence to establish such agency is clear and satisfactory and the plaintiffs proved a receipt, in the following words, viz. : “ Salmon River, 30th June, 1812. This day was culled by John Hursden, the remainder of the eight thousand feet of square oak timber, agreeable to Walter and Robert Buchanan’s contract with John Curry, bearing date the 11 th February, 1812, and was examined and received by me, according to my advice from Wm. Johnson, Esq. Niel Livingston.” The defendant proved by Joshua T. Cozens, that Walter Buchanan had acknowledged to him, that the defendant had paid the advance money, that is, 800 dollars, payable 1st March, 1812, according to contract. It was proved that Robert Buchanan, one of the plaintiffs, was a naturalized American citizen, and resided at French Mills, in Franklin county : and that Walter Buchanan, the other plaintiff, and the defendant, John Curry, were British subjects, and resided in Canada, during the late war.
The places of delivery named in the contract are so general, that the plaintiffs had an election to deliver the timber within the United States, or in Canada. And it does not appear whether it was actually delivered in Canada, or in the United States. Nor -does it appear how much of the timber was delivered before the declaration of war, (18th June, 1812,) or how much afterwards. A part, however, to complete the contract, was delivered, as appears by the receipt, at" Salmon River, on the 30th June, 1812.”
The first ground of defence was, that the war dissolved tire -contract; and that it became unlawful to fulfil such an agreement between the defendant, who was an alien enemy residing in Canada, and one of the plaintiffs, who was an American citizen resident here.
To have transported the timber into Canada, pursuant to the contract, during the war, would have been unlawful:
The rule is founded in public policy, which fdrbids, during war, that money, or other resources, shall be transferred, so as to aid or strengthen our enemies. The crime consists in' exporting the money or property, or placing it in the power of the enemy; not in delivering it to an alien enemy, or his agent, residing here, under the control of our own government.
-Suppose, an American citizen, previous to the war, had contracted to furnish a quantity of flour or cotton to a British merchant, to be delivered to his agent at the port of Jtfew-York; would a declaration of war between the two nations, render it unlawful to fulfil the contract ? I think not. In such a case, the interests of commerce are perfectly compatible with the rights of war; and public policy does not forbid the transfer. None of the authorities cited, support the doctrine contended for by the defendant on that point.
In the case of Clarke v. Morey, (10 Johns. Rep. 69.) it was decided, that an alien resident in the United States,
The defendant,- also, relies upon á submission, and award, to bar this suit. It appears, that on the 7th daj7 of Aprils 1813, (during the war,) at Cornwall, iti Upper Canada, Walter Buchanan (oné of the plaintiffs) entered iftto formal bonds of submission to arbitration, with the defendant, of all matters in difference between these plaintiffs átid lite defendant, embracing the very claim now before u¿, Walter Buchanan signed and sealed thé arbitration bond, for Robert Buchanan, aá Well as in his own right; Robert then being a citizen of the United Slates, and resident here. An award was made pursuant to the submission, on the 7th of April, 1813 ; whereby the defendant, John Curry, Was required to pay to the plaintiffs, on account of this timber, 731. 16s., lawful money of Upper Canada, on or before thé lét of June theti1 tiext. The defendant gave in evidénce á receipt, endorsed on the award, in these words, viz: “ Received, Montreal, 20th July, 1813, from Mr. John Curry, 741. 7s. 3d., it being the amount of this award, with interest. Walter Buchanan.”
To this award the plaintiff’s counsel objects, first, that on the authority of Griswold v. Waddington, (15 Johns. Rep. 57.) the war dissolved the partnership between Walter and5 Robert Buchanan; and, 2dly, that Walter could not, as partner, seal a bond of submission, so as to bind his copartner Robert, and that no special authority for that pulpóse was-given, or could be given, by Robert to Waller, during the war. In my judgment, these objections are not well founded. Although the war dissolved the partnership, yet the
We are of opinion, that the defendant is entitled to judg ment.
Judgment for the defendant.