3 Johns. Ch. 167 | New York Court of Chancery | 1817
The cause stood over for consideration until this day, when the following opinion was delivered by his Honour;
1. The first question is, whether the plaintiff is not entitled to recover the stipulated compensation which her husband was to receive, on the completion of the voyage, for his services as supercargo.
The instructions under the hand of the defendant stated, that the testator was to receive for transacting the contemplated business, two and a half per Cent, of the value of all property brought home for the account of the defendant, arising from the proceeds of the outward cargo, after deducting the duties and other expenses, &c. That he was to have his reasonable expenses, while on the voyage, paid out of the cargo 3 and that he was to have a share of five per cent, or one twentieth part of the nett profits of the voyage, at its termination.
It is contended, that the services were substantially and beneficially rendered by the supercargo and his substituted agents, and that these services received the approbation of the defendant.
It is admitted, that the voyage was successful and yielded a profit, though the defendant will not disclose the amount of the profits. The answer says, that the defendant may have expressed his approbation of the conduct of the substitutes 3 and a witness heard him acknowledge, after the return of the ship, that the testator had acted as well as he could under the circumstances, and that the con- , duct of the substitutes was satisfactory.
There are other circumstances from which we may infer the defendant’s admission that the commissions were due, though the supercargo had left the ship at the Cape of Good Hope, Thus, in the defendant’s account current, annexed to his answer, he adds, on the credit side, of the date of the 29th of September, 1808, when he had received information of Mr. Gray’s death, “By prem. on 2,000 dollars, Bryan and Baehr com. charged, they being to receive so much out of Mr. Gray’s com.”
The defendant, at that time, knew of the substitution.
The conduct of the testator, from the commencement of the voyage; until he was obliged to retire, from extreme sickness, was faithful and judicious, and the equity of the claim on the part of the plaintiff is striking and impressive. There was great confidence reposed in the supercargo, and an enlarged discretion given him by the instructions. He was recommended to govern himself at Calcutta, by information he might collect there,. as to the expediency of a voyage to Batavia. He was authorized to send the ship-even to Canton or Manilla, and was recommended to substitute Baehr for himself, as to such secondary voyage, and Baehr was very specially recommended to his attention and confidence. He was instructed to select another house, in the hands of which he was to place the outward cargo, in case he should find the house of Phelps, Page, Co. unsafe, and all disbursements by the captain or otherwise, were to be approved of by him, exclusively.
Under all this power and confidence, the supercargo acquitted himself with judgment and probity, and it was not the least evidence of it, that he should have'selected this very Mr. Baehr as one of the substitutes to whom he transferred his trust. Baehr and Bryan were appointed by him to act in his place, as supercargoes, and they accepted the duty, and promised to perform it, for a compensation to be paid by him out of his commissions. They did- perform trust, and to the approbation and benefit of the defemlant. It would appear to be unreasonable and unjust,
The general rule of the common law is,' that if a contract be undertaken, and partly, but not entirely, performed, the party cannot recover his wages or hire, as for a partial performance of it, pro rata. (Countess of Plymouth v. Throgmorton, 1 Salk. 65.) Thus, in Cutter v. Powell, (6 Term Rep. 320.) the defendant gave a nbte, promising to pay the plaintiff’s intestate, 80 guineas, provided he proceeded, continued, and did his duty, as second mate in the ship, on a voyage from Kingston to Liverpool The intestate entered on the voyage, did part of the service, and died on the passage. It was held by the K. B. that the plaintiff was not entitled to recover either upon a quantum meruit, because the express contract did away all implied ones, or upon the express contract, because it was not fulfilled. The performance was a condition precedent, and it was an entire contract. But in this very case light breaks in from another quarter, to console us for the severity of the doctrine. If the party hired, wilfully or voluntarily abandons his contract, after a part performance, as in M'Millan v. Vanderlip, and Jennings v. Camp, (12 Johns. Rep. 165. 13 Johns. Rep. 94.) there is equity in denying him a rateable compensation; but we are speaking of cases in which the party was prevented from an entire performance, by the act of God; and in the cases cited from the Term Reports, the court admitted, that if the commercial usage had been to recover in such case rateably, that usage would have controlled their opinion. The old rule was, that if a servant agreed to re
In Chandler v. Grieves, (2 H. Black. 606. note.) it was certified to the C. B. to be the admiralty -usage, that if a seaman be disabled in the course of the voyage, he was entitled to wages for the whole voyage, though he had not performed the'whole. But,.Mr. Abbott, (Treatise on Shipping. p. 355, 356.) says, there is no general decision on the subject in our law books; and that in certain foreign ordinances, to which he refers,- it is not clear whether the payment of seamen’s wages,- on the death of a seamam during a voyage;-is to be understood of a sum proportionable to the time of his service,- or of the whole sum that would have been earned, if he had lived to the end of his voyage.
In Sims v. Adm. of Jackson, (1 Peters’ Adm. 157.) it was decided in the Circuit Court of the United States, for Pennsylvania, that full wages for the entire voyage were due to the representative of a seaman, hired for the whole voyage, at 30 dollars per month, and who died when it was only half performed. The decision was grounded on what was understood to be usage of the English Admiralty, and the decision in the laws of Oleron. But, afterwards, in Natterstrom v. Smith, (2 Hall’s L. Jour. 359.) the District Court of Massachusetts, after ah able and learned review of the marine law, dismissed a claim for wages of a- seaman beyond the time of his death, when the engagement was by-.the month.
These cases are not exactly analogous to the one before me, but my object is to show the spirit' and liberality of the marine law on the subject.
But the plaintiff claims, not only the compensation mentioned in the instructions, but, also, the two and a half per cent, on the sales of the wine, in pursuance of the agreement of the 5tli of August, 1807, between Phelps, Page, Sf Co., and the testator. This agreement xvas according to the allowance contained in the first proposals of the defendant to Phelps, Page, 8? Co., of the 27th of December, 1806, and their answer of the 14th of February folloxving. It was an allowance which the defendant had procured for and in the name of the supercargo for the voyage in contemplation, and before he had selected the testator for that trust. It was, in the first instance, under his control, and for his benefit. He had a right to make such contract as he pleased, with the future supercargo, in respect to the compensation he was to receive ; and I am inclined to think that the testator could claim no more, or other compensation for his services, throughout the voyage, than what is specified in the instructions. The language of the instructions is veiy precise,t and the two and a half per cent, there allowed, must be understood as including all the commissions of the supercargo. Those
I am of opinion, therefore, on this point, that the defendant is entitled to the credit which he claims by his answer, of 1,230 dollars, as being part of the profits of the voyage.
2. The next point in the case is, whether the plaintiff • js entitled to recover the amount insured by the policy, cancelled by the defendant without authority.
There is some difference of opinion between the parties, as to the origin and motive of the insurance on the testator’s life.
The defendant says he was desirous of being indemnified for his advances on account of the testator, by an insurance on his life, as well as on his commissions; and that he, accordingly, suggested it to the testator, who acquiesced, and told the defendant, before he sailed, that he had applied for that purpose to the agent of the London Insurance Office. A witness, (James B. Murray,) present at the conversation between the defendant and the testator, says, the sum was not exactly fixed, but it was mentioned to be between % and 3,000 dollars; and that it was understood between them, that the testator teas to fix the sum at the agenfs office, and the defendant to pay the premium.
On the other hand, it is in proof by another witness, (George W. Murray,) tihat as a friend to the testator, he first
suggested to him a policy on his life, for the benefit of his
The orders given by the testator are in proof, and the amount of the insurance was three thousand pounds, sterling, written at large, and repeatedly, by the testator. He declared, therein, his object to be, to secure to his wife and children, in the event of his death, a certain sum, and that when the terms were known, the agent of the office was to communicate with George W. Murray, who was authothorized by him. All this appears by the testimony of Charles Murray.
We cannot possibly be mistaken as to the great and leading motive of the testator, in procuring an insurance on his life, nor can we be mistaken as to the amount of the sum which he intended to insure. It is very clear, also, that when the defendant, afterwards, undertook to cancel this policy, on the ground of mistake in the sum intended by the testator, he assumed a fact which did not exist.
The defendant professed to act, throughout the whole transaction, under the impression that the testator had no other object in ordering the insurance, than the defendant’s indemnity for the advances which he might make. In this he was, also, mistaken. That indemnity might have had some influence with the testator, but his governing motive, according to his own solemn declarations, and according to the testimony of G. W. M., was of a higher, more pressing, and more interesting nature, since it was to secure
The witness, George W. Murray, was under engagement to the testator to pay the premium; and this interference and assumption of the business, by the defendant, was voluntary, and to answer his own purpose. Having undertaken to do the business, in pursuance of the orders of the testator, in the stead of George W. Murray, he was bound to do it well and faithfully, according to those orders ; and having performed it, he was concluded and bound by the act of performance.
The orders of the testator were received and accepted at the London Pelican Office, and the insurance made, the policy delivered, and' the premium duly paid by the agents of the defendant, in pursuance of his letter of the 15th of July. All this is proved by the three witnesses, in London.
(Charles Murray, Jenkins Jones, and Frederick Mullett.) It became, then, a complete and executed contract. The
The next part óf the history of this case relates to the' act of cancelling the policy, by the directions of the defendant.
The answer states, that on the 7th of November,■ and before any reply was received from his London correspondents, the defendant went, with George W. Murray, to the agent’s office in New-Fork, and there discovered that the' testator had insured his life/to the amount of 3,000 pounds, sterling; and that an answér, favourable to the application, had been received. He states, further, that not knowing that' the testator had any other object beyond the défendant’s indemnity, and deeming the premium high and considering it would be for the interest of the testator, he ordered' the insurance for 2,000 dollars only. It appears, also, by his letter to his correspondents,' of the 7th of November, that he ordered 450 poutids, sterling, to be insured, and drew for the premium, and directed them to hold that policy, and" the one on the comniissions, for him.
It is a little singular that in this letter, as well as in the" one to the plaintiff, of the 13th of November, the defendant was silent as to the amount of the insurance' in the orders of the testator, and which orders he knew had Been accepted. His answer does not pretend that the sum named by the testator was contrary to any contract or understanding between them, but only that, as the pre-" mium was high, and as he did not know that the testator had any object beyond the defendant’s interest, he thought it for'i/ie interest of the testator, to reduce the policy from' 3,0t)0 pounds, sterling, to 450 pounds, sterling.
He says that he did this with the advice of George W'.' Murray. Whether he did, or did not, is immaterial, for the' contract of- insurance had passed, at that time, beyond (lie power of recall, by either of them. But George W. Murray declares, that he gave him different advice. When
But the defendant waited for no such reference, and he, afterwards, told the witness, that he had taken upon himself to cancel the policy.
It appears, that on the 17th of Novemberhe received the answer of his correspondents to his letter of the 15th of July, in which they state, that the testator had directed an insurance to 3,000 pounds, and that the office had accepted the risk, and that they had paid the premium; and charged it to him. Then follows his reply of the 19th of November, declaring that the policy for 3,000 pounds was a mistake, and must be returned in toto, and no further sum to continue than 450 pounds; and his letter; also, to the plaintiff, of the 10th of December, announces to her the mistake, and his conviction of it. This last letter to the plaintiff, shows that the defendant assumed a very bold and arbitrary controul over the policy of her husband, and without regard to any interest hut his own. He tells her, he understood that her husband only contemplated insuring 2,500 dollars, and that 2,000 dollars would cover his advances ; and that he took the liberty of acting as he thought best for the interest of her husband,- and had limited the sum to 2,000 dollars, and had directed the first policy to be cancel-led.
The policy was, accordingly, cancelled under his orders; and by his agents, Thomas Mullett & Co; and it was consented to be cancelled, and the premium returned by the Pelican Insurance Office, under the impression and belief communicated to them by the defendant, that the 3,000 pounds had really been mistaken for 3,000 dollars;- But if the mistake had existed, why did the defendant depart from the testator’s intention, and reduce the policy from 3,000 to 2,000 dollars? His interference with the con
state that they had corrected the alleged mistake, and obtained the consent of the Insurance Office to cancel the 3,000 pounds policy. But they observe, by way of rebuke, that it was “rather singular” the defendant had never before mentioned “ the sum.” In the close of the correspondence on this point, by the letter of Thomas Mullett &/• Co. of the 22d of December, they
By this interference, on the part of the plaintiff, to procure the destruction of a valid and executed contract, I think he has substituted himself for the insurers, and is answerable to the plaintiff for the value of the original policy, after deducting the premium. The pretence of fraud in the testator, by representing himself as sound, when he was not sound, is an inadmissible defence. The answer of the defendant states, that the health of the testator was indifferent when he sailed, and the defendant doubted of his life; yet we hear of no scruple, or objection, on this ground, when the defendant was urging the testator to have his life insured, and when he was himself an assumed agent to effect it. If the health of the testator was sufficient for a policy to indemnify the defendant, it was ffisucient for a policy to provide for his own family. The defendant was, at least, duly apprized of the state of the testator’s health, and he, in the character of a substituted insurer, is bound by his own knowledge. But there is no sufficient evidence of the fact, that the testator was of an unsound constitution. The momentary indisposition and despondency mentioned by James B. Murray, is of no material consequence.
As to any supposed acquiescence on the part of the plaintiff, and binding on her, it is evident that she assumed the statements of the defendant to be correct. It is a well established, as well as a most reasonable principle, that to constitute a confirmation, the party confirming must be
I shall, accordingly, decree, that a reference be made to a master, to take and state an account between the parties, and that in taking such account, the defendant be charged with the commission of two and a half per cent, and with the reasonable expenses and disbursments of the testator on the voyage, and with the five per cent, or one twentieth of the nett profits, according to the tenor of the allowance mentioned in the letter of instructions from the defendant to the testator. That the defendant be credited with the commissions of two and a half per cent, on the sales of the wine, to 1,230 dollars, and that these commissions be considered as constituting part of the nett profits of the voyage, at its termination. That the defendant be charged with the amount of the policy in the pleadings mentioned, for 3,000 pounds sterling, with interest thereon from the time that the knowledge of the testator’s death was received by the defendant, and be credited with the premium thereon, to 2541. 5s. That in stating the said account, no notice be taken of the subsequent policy which the defendant procured without authority. That the proofs already taken in the cause, be received as evidence before the master, and that the question of costs, and all further questions, be reserved, until the coming in of the report.
Decree accordingly.