3 Johns. Ch. 587 | New York Court of Chancery | 1818
There is considerable variation in t*ie objections made to the decree, as stated in the petition ®5r a re-hearing, and in the points on which the cause wag-tore-argued. But, I apprehend the rule to be well' settled. u 11
I shall, therefore, take up the objections, as they were stated in the petition on which the rehearing was granted.
1. The first objection is, that the decree did not order a general account to be taken and stated between the parties, and that the decree was confined to the specific Charges stated in the bill. The second objection was an amplification of the first, and applied to that part of the decree which directed all proper allowances to be made to the defendants for remittances and payments, without slowing them to go at large into all and every matter of account. The defendants now seek, upon the rehearing, for a general account of all transactions between the parties, from the first day of January, 1805, to the filing of the bill.
It is a little singular, that this objection should not have been made before the cause went to the Master. A whole year elapsed between the time of pronouncing the decree and the coming in of the Master’s report, taken upon foot of the decree. It seems not to have been discovered, that such a general account was wanting, until after a large balance had been found, and stated against the defendants. But the point is now ojien for re-consideration, and it will be requisite to examine the pleadings closely, to see what are really the matters in issue. I take it for granted, that the order for a reference must be founded upon the pleadiñgs and proofs, and that it cannot be made more sive than the allegata and the probata of the parties.
The bill is founded upon specific charges. There aré x L none of an earlier date than December, 1807. There are
Neither the answer, nor the proofs, will warrant an in-beyond the special matters charged in the bill.
^ie defendants, after denying all general copartnership, all joint concern, other than “in the shipment, importation, and sale on commission, of cargoes of merchandise,” state, that the plaintiff “ had been given to understand that the defendants were willing, on their joint account, to receive teas and other goods to sell on commission for the plaintiff,” and that, “ with a view to such sales on commission for account of the plaintiff, an Agreement was made and entered into by one of the defendants, on their behalf, with the plaintiff.” The agreement here referred to, is stated in the answer, to have been made in October, 1807. This is very decisive proof that the defendants do not entitle themselves by their answer, to go farther back than the date of the specific charges in the bill; and any attempt to go farther would only be to involve the charges in question in a labyrinth, from which nothing c.ould arise but embarrassment and delay. And, indeed, in another part of the answer, after meeting all the charges in the bill, they expressly deny “ that they are indebted to the plaintiff, between December, 1805, and the filing of the bill, otherwise than is above stated, for any goods sold or Consigned to them.
In the first place, they claim commission on disbursements on the teas sold, on account of the plaintiff, and shipped on board the vessels mentioned in the bill, and they also claim for duties guaranteed and paid on the teas consigned to them, and for freight of teas shipped in the ship Chinese, on her second voyage, and the premium for insurance thereon, and for freight of teas shipped on board the Hope, in 1810, and for a further charge of freight of the cargo by the Hope, and for charges of remitting 30,000 dollars in specie. I should apprehend that these charges were all reached by the decree, which could only have intended to make the defendants answerable for the net proceeds of the cargoes consigned to them, after making them all just allowances. The petition for a re-hearing does not state, nor has it been shown or pretended, that any of those charges were not received, as competent subjects for examination, under the decree. I presume, they do not form any part of the ground of complaint; nor have the defendants specified the particular charges which have been rejected by the Master, nor in what they consisted. They deal in general terms in their objection, and say only, that “ matters of account to a large amount” are excluded. We ought, at least, to have been so far informed of what those matters of account consisted, as to have been enabled to form some judgment of their pertinency or application to the subject matter of the suit. It would be an act of great indiscretion, if not of positive injustice, to interfere with a decree upon such a loose and general allegation.
There are other counter claims set up in the answer, which seem to be utterly groundless, even if the decree was to embrace them.
1. The.defendants claim a sum for the difference between ten per cent, per annum, under the agreement which they set up, and the legal interest of this country, on certain notes, the amount of which they were prevented from remitting for one year, by reason of the embargo. The solid to this claim is'to be found in the principle declared in Conway v. Gray, (10 East, 536.) that in all questions arising between the subjects of different slates, each is a parly ^ie Pu^c authoritative acts of his own government, and /¿e {c as much incapacitated from making the consequences 1 J ° 1 of an act of his own state, the foundation of a claim to indemnity upon a foreign subject, as he would be, if such act had been done immediately and individually by himself.—r Lord Ellenborough said, .that this same principle was established in Touteng v. Hubbard; (3 B. & Puller, 291.) and, indeed, we find the principle declared in every period of the English law, that every subject is to be deemed a party to the laws of his own government, (Bro. Abr. tit. Parliament, pl. 41. Dyer, 23. b. pl. 148. 9 Co. 107. a. Lord Mansfield, in Wadham v. Marlowe, cited in 8 East, 314, note.) The force of this doctrine must be specially felt and acknowledged in this country, where the acts of the government are practically, as well as theoretically, the acts of the representatives of the people.
2. The defendants further claim, in their answer, the heavy sum of 17,085 dollars and 94 cents, for overcharges on teas and nankeens shipped to them in 1809 and 1810, and which sum was over and above what equal qualities of the same articles could have been furnished for, at the time they were shipped. If the goods, in this case, were consigned to the defendants to sell on commission, they had right to complain of the charge, for it was no injury to them, and the plaintiff was in the exercise of his perfect right. If the goods were sold and delivered to the defendants, why did they accept of them ? Why did their agent at Canton, accept of them, in the first instance? The
3. Another charge is, that the defendants paid one David Bentock the difference of value of 900 pieces of nankeen, shipped to them as for long nankeens, and sold as such", and which turned out to be pieces of the short Jdnd. The charge is of the date of June, 1811, and there is no proof, either of the defect or of the payment.
4. The defendants further charge near 4,000 dollars for the difference of interest, between 10 and 12 per cent., exacted from their agents, Crary and Nexsen, on sundry promissory notes paid by them to the plaintiff; and they rely upon an agreement, stated to have been made. by Edward Fanning, on behalf of the defendants with the plaintiff, in October, 1807, by which 10 per cent, interest only, was to be charged.
The only agreement proved, is one of the 8th of November, 1807, made between the plaintiff and Edward Fanning, one of the defendants. It differs materially from the one set forth in the answer, and there is no evidence in the case, that Fanning was authorized to make such an agreement on behalf of the defendants. We have seen that the defendants, in their answer, deny any copartnership between themselves, except for the single purpose of the shipment, importation, and sale on commission, of cargoes. One of the copartners, for such a special purpose, had no authority to bind the rest to such an agreement as this, Which was clearly not within the scope and purview of the
None of these provisions were ever carried into effect; no ship was ever built and put into the Chinese trade, on the foot of this agreement. The plaintiff was, also, to do the business of the ship at Canton, without charging any commission, and the defendants were to sell the cargoes of the ship at New-York, free of commission. The charges, in the answer, of freight and commissions, are directly repugnant to these provisions, and afford the most satisfactory proof that the agreement was never observed or regarded as binding.
The defendants admit, that the lawful and customary, rates of interest at Canton, is 12 per cent.; and all pretence of a claim to be charged a lower rate of interest, on the ground of this agreement, is clearly without foundation.
5. A further charge in the answer, is, for the plaintiff’s proportion of bad debts made by the defendants, on the sa^e °f teas on their joint account, to the amount of 2,060 d0iiars and 71 cents. But the answer admits, that the plaintiff had cliarffed. and had u received payment from * ^ them of that sum;” this act certainly closed the inquiry, and the defendants must be considered as assuming those debts to themselves. There would be no end in dealings, or safety to persons, if a charge of this kind to be indulged, after the debt itself had been assumed and paid, and when no fraud, or mistake, is suggested. It
6. The defendants advance another charge of 6,583 dollars and 56 cents, being the difference of market price of certain seal and other skins, shipped by the defendants and consigned to the plaintiff, and received by him from their supercargo, in March, 1807, and for which, they say, the plaintiff “ was to allow as good a price in cash as any merchant in Canton would give, and that the plaintiff did not allow or account with them but for a very inferior price.” This cargo was delivered in 1807, and the charge bears date as late as 1812, and admits, that the parties had accounted together for the skins. To open this inquiry, after the lapse of so many years from the delivery, and after the settlement which the very terms of the charge imply, would be very unusual, and hazardous to the cause of justice. There has not been a particle of proof in support of the charge, and it bears a portion of hardihood in its very features.
7. Another charge in the answer, is of the sum of 14,639 dollars and 94 cents, for interest due from the plaintiff, on sundry large sums orbalancesin his hands, due and unpaid by the plaintiff, from 1806 to 1812. This is a most extraordinary, as well as a most extravagant item. Unsettled accounts do not bear interest, as of course, until liquidation. The charge assumes, that the balances were paid in 1812. No interest subsequent to that period is claims
8. The defendants further charge the sum of 12,871' dollars and 51 cents, for freight of the cargo on board the ship Chinese, from Canton to New-York, being the plaintiff’s first consignment, together with the further sum of 2,366 dollars and 43 cents, for the premium of insurance and commissions respecting that cargo. There is no charge in the bill respecting this cargo, which xvas the one assigned to Baring Co., and for xvhich the defendants admit in their petition for a rehearing, that “ they are bound to account to Baring &f Co., or their representatives, for the full amount.” They are bound to account only for the net proceeds, and, consequently, these charges for freight, and insurance and commissions, are to be deducted from those proceeds, and these items are to be settled with Baring %■ Co., and not with the plaintiff. Nothing' can be plainer than this course, and nothing more unreasonable than to make these charges' against the plaintiff, after the admission, and the proof that he is not the owner of the cargo, nor of the proceeds.
9. The next charge is 144 dollars and 51 cents, for teas which proved to be of a bad quality, and which the defendants had sold for the plaintiff, and which sum “ they xvere obliged to refund by reason thereof.” This charge bear's date as late as April, 1813» long after all the shipments in question, and we have no explanation of the case, nor upon what grounds the defendants were obliged to re
10. The defendants, in addition to all these unfounded charges, state, that the plaintiff purchased of them, in 1807, 3,300 piccols of sandal wood, amounting to 53,800 dollars, and “debited to the plaintiff, and for which he ought pay, or account to them.” The proof that appears to bear upon this charge, is a certificate signed by the plaintiff, and the defendant, Edward Faming, dated the 8th of October, 1807, stating, that the latter had sold to the former a cargo of sandal wood, laden on board the Hope, at the Fegee islands, and soon expected to be delivered^ arid to be "■ payable in cash.” It would be a little extraordinary, if such a cargo, declared to be payable in cash as early as 1807, should have been delivered, and the payment deferred to this day. The charge does not appear to be announced, at the end of the answer, with the confidence belonging to truth; and after all the various dealings and payments made by the defendants, and confessed in the answer, I entertain an entire conviction that this charge is unfounded. The answer does not say, that the cargo was not paid for, but only that the plaintiff ought to pay, or account to them. The testimony of Obed Chase, relates to a subsequent sale of sandal wood to the plaintiff, in November, 1810; he was also at Canton, in 1807, when the ship arrived from the Fegee islands, and he resided at the same house with Faming, for fifty days, and they had frequent conversations together, and not a syllable of testimony is given of any complaint by Fanning of non-payment. He makes no mention of any such difficulty, nor do we hear a complaint, or a word as to the non-payment for the sandal wood, in 1807, until we meet with the charge thrown in as a make weight, at the end of the answer of the defendants in this cause. The sum was of too great '
There are two other specific- charges in the answer which remain to be disposed of.
One of them is demurrage of the ship Hope, detained 'by the plaintiff, and this charge rests upon the testimony of Captain Chase. He says, that when he ' arrived at-Canton, in November, 1810, with- a cargo of sandal wood, he was detained from the 20th of December to- the beginning of January following, in consequence of a dispute between him and Consequa, as to the price; arising from the quality of the wood. It- seems, that Chase judged it expedient, or necessary, at last, to comply with the terms of the plaintiff, and the time consumed in that dispute the-defendants charge as demurrage. Such a charge is without precedent. Demurrage means a delay, at the instance of a merchant, for farther time to load or unload, or to sail with convoy, and for which he covenants to pay a daily sum. The ship Hope was not detained- at the instance, or for the benefit of the plaintiff The delay was the consequence of a dispute between the parties, as- to the price of an article, and may have arisen as much from the obstinacy or unreasonableness of Chase as of Consequa.—The merit of that dispute is not now the point of inquiry. It is certain that the charge, as it stands, is without the shadow of foundation; nor does the charge and the proof correspond, in any degree. The detention spoken of by Chase, was in 1810, and he says it did not exceed 25 days, and he should suppose 45 dollars a day to be a reasonable demurrage for the Hope. The charge (see account, No. 1.) is of the date of Mgust, 1812, "and is as
The other charge is for “ costs, freight, and expenses, of a cow sent to the plaintiff.” The receipt of this cow is admitted in a letter of the plaintiff, of the 30th of November, 1810, (being all the proof which we have upon the subject,) in which he says, “I thank you very much for your attention in sending me so handsome a cow and calf.” Considering the terms of this acknowledgment, the trifling value of the article, and the extensive business in which the parties were engaged, I should infer, that this cow was intended, and received, as a gift, and that the defendants had, afterwards, most ungraciously turned it into a charge. It appears, from their account, No. 1., that the date of the charge of the cow, is the 31st of December, 1813, and is in these words : “ cost freight and expenses, of a cow sent per Chinese, May, 1810, 350 dollars.”— Here was an interval of above two years and a half) between the shipment of the cow and this extravagant charge; and the letter of the plaintiff, to which I have referred, contains another and a more explicit act of kindness between the parties, and gives additional force to the construction which I have drawn. The plaintiff) on behalf of his son, acknowledges a “ very handsome comeshaw,” from the son of Edward Fanning; and he courteously meets the civility, by. sending “ some little comeshaw,” in return, and declaring that he should be “ very happy to see Mi. Fanning in Canton.” Without some farther proof, I should never consent to the charge in question, considering all the circumstances under which it is presented.
I have thus gone through a laborious examination of all the charges which the defendants have specified in their
While in this stage of the cause, I may notice, once for all, the charges which have been made, and the philippic pronounced at this re-hearing, as well as upon the former argument, against the tyranny and oppression of Consequa, and the other Hong merchants, at Canton. ■ What was said by Captain Chase, (which I shall notice more particularly hereafter,) affords the only, but very insufficient, colour for the accusation. Judging from the pleadings and proofs in this cause, I should be led to conclude, that the plaintiff was a man “ more sinned against than sinning.” No general charges, unsupported by specific and pertinent testimony, can have any influence in the case. It may be, that the Chinese, considered in respect to their general manners and morals, are, as I incline to think they are, mean and semi-barbarous; but I have no doubt that there are numerous individuals among them, who are kind, beneficent, and just. If i am not mistaken, instances of such characters are mentioned by Bell and Barrow, in their accounts of the two most interesting embassies that ever went from Europe to China. We may
When such a man, from such a people, comes, as a suitor into our courts, he ought not to be heard with a mist of prejudice hanging over his name, his character, and his country. His claims should be received with candour, and treated with impartiality. It is no more than common justice; but the sense of our responsibility cannot fail to be more lively, when we recollect that the people to whom he appeals, are in possession of gifts denied to the Chinese ; I mean the blessings of freedom, and the light of science, and the still brighter light of the Christian revelation.
The bill charges, that Chase gave the notes as the authorized agent of the defendants, for goods sold and delivered to the defendants. The answer admits the note, but denies that Chase was the agent of the defendants for that purpose. The defendants farther admit, that the goods, for which Chase’s note was given, “ were delivered by the plaintiff to them, and were intended by the plaintiff as a sale to thembut they say, that upon the arrival of the Hope with that cargo, and before unloading, they entered a protest against receiving the goods on their own account, but that they should receive and dispose of them on account of the plaintiff. The only objection here to the decree is, that the defendants are charged with the cargo as sold, whereas they are willing to account for it, as consigned to them. The goods are delivered by the plaintiff to them as a sale, and the plaintiff intends the delivery to be a sale. All this is admitted, and the defendants take them under a protest, that they receive the goods as a consignment, and not as a sale. The defendants have not proved this protest; and if they had, it would be about as valid and efficacious, as a mental reservation to an oath. Of what use was this protest to the plaintiff, who resided on the other side of the globe? The acceptance and delivery are correlative acts, and if the plaintiff delivers for one purpose, as he did in this instance to Chase, for the defendants, and the defendants accept, they accept for that purpose, and cannot take for any other. A different construction would banish all sincerity and probity in dealing. It would enable a party
The answer says, that the cargo of the Hope, in this case, was put on board, at Canton, by the plaintiff, without the consent of Chase, further than the net proceeds of the outward cargo. How far the cargo so put on board exceeded, or whether it exceeded, at all, the proceeds of the outward cargo, is not stated, or averred. There is no precise evidence of any gravamen, even upon the ground taken by the defendants. There is something, however, very improbable, and contrary to the most obvious dictates of common sense, in the charge, that the plaintiff forced any part of the cargo on board of the Hope, without, or against the consent of the captain.. Would any reasonable man part with his own property, in this violent way, against the consent of the purchaser, and trust his goods in this country, without any security but a note extorted from Captain Chase? All the transactions of Consequa show more method in his madness. The whole accusation is absurd and incredible. If he did do this preposterous thing, how came the defendants so quietly to receive the goods'? Their very acceptance of the goods hr this country, denies, or waives the violence of the shipment at Canton. But the testimony of Captain Chase does not warrant the accusation. He does not pretend that the cargo which he received was a coerced delivery to him. All that he complains of is the dispute between him and the plaintiff, as to the price of the sandal wood,
But this point need not be pursued further, for the petition for a rehearing, admits that the defendants are responsible for the goods, to the amount of the note, as for a consignment; and if, instead of a consignment, the act ought to be deemed a sale, there is an end of the question.
3. Another ground for the rehearing is, that by the decree the defendants are charged, on notes, and goods sold and consigned, with interest, at the rate of 12 per cent, whereas, the defendants ought not to be charged, in the case of consignments, where the contract was made here, with any greater interest than the lawful interest of this state.
The answer to this objection is, that it is an acknowlodged rule, that interest must be paid according to the ^aw °f the country where the debt was contracted, and to h® Paid) and not where it is sued for. The cases cited by the plaintiff’s counsel show this. (See also, Ekins v. East India Company, 1 P. Wms. 395. and 2 Fomb. Tr. of Eq. 442. 446.) The principle is entirely applicable to the case of consignments. The plaintiff consigns a ship- . ° 1 . . - r ment to the defendants, and the cargo is received at Canton by the agent of the defendants, on their behalf. Canton is then the place where the contract is made, and Canton is the place where the debt is to be paid. The defendants admit, in all the cases of cargoes consigned to them, that they were to receive and remit the proceeds, and the interest for which they are chargeable, is upon the sum which ought to have been remitted, and to be computed from the default. There is no difference, in principle, as to this point, between a sale and a consign
4. The two remaining objections to the decree, relate to the allowance made in favour of the claim of Baring fy Co., and, it is contended, that there was an error in the decree, in supposing part of the 64,828 dollars and 65 cents, being the second cargo of the ship Chinese, was ever assigned to Baring Co., and that, notwithstanding that error, a sufficient allowance out of the cargo was not made for that claim.
This objection is not very intelligible; but the counsel for the plaintiff concede, .that there is a mistake in the decree, in supposing that the assignment to Baring fy Co. was out of the second shipment in the ship Chinese, in 1810, whereas, it was out of the first shipment in 1809, and it was the admission of the counsel himself which led me into this error. The mistake in the decree ought to be corrected in favour of the plaintiff, and not of the defendants. The charge in the bill, is for the cargo shipped on board the Chinese, in November, 1810, and consigned to, and received by the defendants. The answer admits the consignment and delivery, and it sets up the assignment to Baring Co., of the cargo shipped on board the Chinese on a prior voyage in 1809, and which cargo is not in question in this suit. Instead, then, of making the deduction out of the cargo shipped in 1810, to satisfy the assignment, there ought to have been no deduction, and the defendants should have been ordered to account for the whole of that last cargo. There were two shipments by the ship Chinese. The one in 1809, amounted to
Decree accordingly.
