Hill v. Packard

5 Wend. 375 | Court for the Trial of Impeachments and Correction of Errors | 1830

The following opinions were delivered :

By the Chancellor.

The first objection made to the. recovery in this case is, that the document admitted in evidence on the trial purporting to be a copy of the proceedings in the court of consulado at Havana, does not show that the subject matter of the award was the same as the subject matter of the agreement on which this suit was brought. This question was left to the jury, and they have decided it was the same transaction. The agreement is to indemnify against suits brought orto be brought against Packard & Go wen, or their agents. The suit is nominally against one of the partners of the firm, because he was the only resident at that place; but the specification of the claim shows that it was in fact made against the house of Packard & Gowen. And whether they were called the agents of the house of Olof Coyk, in the proceedings, or the agents of his agents, is perfectly immaterial. The indemnity is against any suit which had been or might be brought for freight or average on account of that cargo of iron. And the jury could not liaye found otherwise than they did on this question ; as there can be no possible doubt as to its being the same matter alluded to in the agreement.

The original claim was for freight, additional freight, general average, and demurrage; but the agreement says nothing as to demurrage. It must be recollected that this agreement was made some months after the claim for demurrage had been rejected by the arbitrators; and therefore it is not necessary to enquire whether a claim of that kind would have been covered by the agreement. The claim which Packard and Gowen were compelled to pay was freight and average only; and these are within the express terms of the indemnity.

The second objection is that the proceedings in the court of consulado were founded upon an arbitration voluntarily and extrajudicially entered into by Gowen, and not upon a regular and hostile suit against him. I am inclined to think the plaintiffs in error are correct in this position ; but I cannot agree with them in the conclusion of law which they attempt to draw from it. The award was made long before the agreement of indemnity was entered into. It was probably to protect Packard & Gowen against the consequences of the claims which might be made under this award as well as oilier claims which might be made if the award should be set aside, that the indemnity was obtained. I think it may be fairly inferred from the proceedings that Gowen remitted the whole proceeds of the cargo to Hill & Plaskins; and as this claim was still hanging over him, he took their indemnity and agreement to bear his house harmless. Whether this award was founded upon a compromise or submission made in Open court, under the provisions of the fifth section of the royal charter, establishing the court of consulado at Havana, or by a private agreement between the parlies, does not appear to be very material, because, in either case, I apprehend, the legal effect would be the same ; as the submission itself would be a termination of the suit then pending. The award probably was not conclusive upon either party; but by the civil law, which appears to be recognized as the law of Spain in this respect, if the party did not appeal from the decision of the arbitrators, or petition for a correction of it within the time prescribed by law, it was considered as tacitly consented to by him ; and the adverse party might bring an action for the specific performance thereof. Wood. Ins. Civil Law, B. 4, ch. 3. Code, B. 2, tit. 56, § 5. The suit commenced in the court of consulado in 1819, xvas unquestionably a proceeding on the part of Otzen, to compel a performance of the award of February, 1815. And certainly the plaintiffs in error can have no reason to object that it was referred back to the arbitrators, to review their award. They did not alter it to the disadvantage of Hill & Haskins; and although they did not vary its principles as to either party, yet they actually reduced the claim made by Otzen under that award, more than $1500. If Gowen tacitly consented to the correctness of this decision, by neglecting to appeal, or to petition for the correction of it within the ten days allowed by the Spanish law, it was undoubtedly because lie was satisfied the facts would not justify a more favorable decision. The whole proceedings show that he did not actually consent to any of these claims; but that the money was drawn from him by the compulsory process of law; for it was not till he was ordered to pay the money instanter, or submit to a sequestration of his property, that he consented to pay the amount decreed against him by the court. Whether the decree was just and equitable is perfectly immaterial, if he had not the power to resist its execution. By the agreement of August, 1815, Hill & Haskins constituted him their agent, to act on their behalf in the defence of any suit brought for this claim ; and if the facts are correctly recited in the original award, he certainly acted the part of a discreet agent in submitting to the decision, without making any further expense, after he had obtained the deduction for the difference in exchange, and for the loss on that part of the cargo which was disposed of at Halifax.

The third objection is, that the award was made in the English language, and that the document produced on the trial was only a Spanish translation thereof. The document produced on the trial did not purport to be a copy of the award, but only a copy of the record of the proceedings in the court of the consulado. Although the original award was in English, it would be very singular if the records of the court were not in the language of the country where the court was held. Hence we find when Otzen brought his suit in that court on the award, the original was not acted on, but he w'as compelled to furnish a Spanish translation thereof certified by the official translator of the court. The original English award was rubricated, and returned to the party, as appears by the certificate of Hernandez the translator, annexed to the copy which remains on record. It was on this translation and not on the original that the proceedings and sentence of the court were founded. The same thing has been done in our own courts in the case now before ns. On the trial of this cause the Spanish copy of the record was produced; but that being unintelligible both to the court and jury, a sworn translation was made and given in evidence, and this translation alone appears on the record and bill of exceptions. If it should turn out hereafter that Olof Coyke had agreed to indemnify Hill and Haskins against any suit which might be brought against them on their indemnify to Packard and Gowen, and a copy of the record in this suit was produced, could it be any possible objection to these proceedings that the original exemplification in (he Spanish language was not incorporated into our records 1

The fourth objection is, that it does not appear that Gowen was sued as the agent of the firm, or paid the amount decreed against him with funds belonging to his house. This objection was not made by the bill of exceptions, and therefore we may presume that evidence on that point might have been produced if the objection had been raised at the trial. But I think there is sufficient evidence in (he case to have authorized the jury to find the fact. I have already adverted to the circumstance that the claim was actually made against the firm of Packard and Gowen, as the representatives of (he owners of the cargo. Whether by the Spanish law the co-partners would be bound by a submission entered into by one of the firm does not appear; but if such submission was made by a partner in good faith and he paid money under the award, it might still be a just claim on his part against the firm ; and certainly they might sanction an act of a co-partner under such circumstances. This recovery was had for an act done by him as one of the firm. Even if a plea in • abatement would be sustainable by the Spanish law, where the other partners were nonresidents, it could not be necessary for Gowen to make that technical objection. The legal presumption is that he paid the judgment out of the partnership fund ; but if he did not he has a right to charge it to the firm, and they were the proper parties to bring the action Qn t]le agieement. And it is immaterial, for this purpose, whether the partnership was or was not dissolved before the termination of the suit: the foundation of the claim being a partnership transaction.

The fifth objection relates to the admissibility of a printed book, purchased at a bookstore in Havana, to prove the royal charter, establishing the court of consulado, and the rules for its government. It is a rule of evidence that the unwritten laws of a foreign country must be proved by witnesses who are acquainted with those laws, and written laws must be proved by an authentic copy, from the records or archives of the country where the original is recorded or deposited. Whether this last principle is applicable to the written laws of a country which are established and promulgated by the government in the form of a code, like those of France and Louisiana, or the recent revision of our own statutes, is the question intended to be raised by this objection. Undoubtedly great and unnecessary expense to the parties may be the result of adhering closely to the rule of the common law on this subject; but whether it is in the power of the courts to dispense with the rule is a very grave question. It is undoubtedly a proper subject for legislation, as it would be very difficult for the courts to establish rules of evidence which would save unnecessary expense to litigants, and at the same time guard against impositions without disturbing settled principles. It is doubtful whether there was any thing in the particular law offered in evidence in this case to take it out of the general rule as to the written laws of foreign countries. It does not appear to differ materially from the ordinary laws of a country which are promulgated from time to time in separate and detached acts. It can hardly be denominated a code. I have also lookéd into it for the purpose of seeing whether its introduction or rejection could have altered the verdict in this case. I presume if the counsel for the plaintiffs in the court below "had done so before they made the objection at the circuit, this question would not have arisen. I can find nothing therein which appears to have any material bearing on this case, except the 5th sec-(ion. By this section it is made the duty of the court to propose to the parlies when they first appear, and before any formal proceedings are had, to settle between themselves, or to submit the matter in difference to arbitration ; and if they agree to do either the suit is at an end. This probably was the way in which the original agreement to arbitrate, in February, 1815, was brought about. But this only shows that Gowen acted in the spirit of this law when he agreed to submit this mercantile question to the examination of two merchants, to say what was the mercantile law on the subject. The question raised by the 5th point is therefore not material to the decision of this case, and I shall forbear expressing any opinion thereon.

The sixth and last objection is, that the whole record of the judgment of the court of consulado was not produced. Although there might have been some grounds for this objection on the first trial, there is certainly no foundation for it at this time in point of fact. We have now the testimony of H. Munusuri, who swears positively that he examined and compared the copy of the record produced at the trial, with the original record, in the office of the records in the court of consulado at Havana, and found the same to be in all respects a correct and true copy. This, in addition to the official certificate of the proper officer of the court, must certainly be sufficient to establish the fact that this is the whole of the record. If there is any informality in the original record, it is the fault of the court and not of Gowen, and it ought not to defeat his claim under this indemnity. The ordinance for the organization of the court shows that its proceedings are intended to bo summary; and to lawyers in this stale they must necessarily appear informal.

On the whole, I see no reason for disturbing the judgment of the supreme court, and I think it should be affirmed.

By Mr. Senator Allen.

The material question presented by this case, appears to be, did the instrument in writing, signed by the plaintiffs in error, guarantee a reimbursement of the money paid by Gowen in pursuance of the proceedings aga¡nst him by Captain Otzen 1

The instrument appears to have been drawn with the v*cw meeting all costs, charges or expenses whatever growing out of the controversy between Gowen and Otzen; for it not only promises to save harmless for any costs which may arise in consequence of any law suit or law suits which are or may be brought against Packard and Gowen, by Captain Otzen, but for any sum or sums of money which they or their agents may be liable to pay, in consequence of any act of the captain, either in or out of court. I am unable to construe this writing in any other way than as a full and complete guaranty or indemnity for any payment made by the defendants in the matter to which it refers. It is objected, however, that the indemnity to Packard and Gowen was intended against damages by law suits, while the money paid by them was, on an award of arbitrators, under an amicable settlement of difference, and not by a regular and hostile suit; and that the payment of the award cannot therefore be a ground for recovery.

It is a fact that the subject was in the first instance submitted to arbitrators; and although, to my view, the words of the writing, “either in or out of court,” and the reasons assigned by the witness who obtained that paper, viz. “ to indemnify Packard and Gowen for any expense they, as agents of the defendants, might incur for freight and average, and whatever expenses they might be at for the ship Fortuna and cargo,” would have authorized the payment of the award by Gowen, without further proceedings in the case, it nevertheless appears that further proceedings weie had, and that the money was not paid by Gowen until compulsory process was issued for the purpose.

That the proceedings in the case were viewed as a suit at law, I think appears from the records of the court of consul-ado, as submitted on the trial in the court below. On the 4th of March, 1819, Captain Otzen appoints Endara his attorney in the suit which he is prosecuting against Gowen. The bill of costs is headed, “ Taxation of costs in the suit carried on by Don Miguel Otzen against Don William Gowen and in the memorial of Endara, he calls the proceedings the suit undertaken for the recovery of a certain amount in dollars from D. W. Gowen. It further appears that a final decree was passed by the court on the 18th of December, 1819, to compel Gowen to pay the amount demanded within two hours, or meet the consequence; and that on the same day, the money was paid into court, and on the 20th of December following, it was paid by an officer of the court to Endara, as the attorney of Don Miguel Otzen. It would seem, therefore, that a regular suit was instituted on the award of the arbitrators, and that the money was paid on compulsory process.

The next point raised by the counsel for the plaintiffs is an objection to the authenticity of the records of the court of consulado at Havana. The proof required to permit foreign judgments to be produced as evidence in our courts appears to have varied with the circumstances of the case: that the copy must be proved to be a true copy of the original record appears indispensable.

Copies of records are to be proved as other transcripts, by a witness, who has compared the copy, line for line with the original, or has examined the copy while another pe'rson read the original. It is a general rule that a copy authenticated by a person appointed for the purpose, is good evidence of the contents of the original. 1 Phil. Ev. 310. In the present case we have the deposition of Munusuri, that the documents were examined by himself and Larralti, and compared with the originals in the office of the records in the court of consulado at Havana, and that they found the same in all respects a true copy, and that the seal affixed is the seal of the college of notaries of the city of Havana, and is the usual mode of authenticating the proceedings of the court of consulado in Havana. It would seem, therefore, that the rule laid down by Phillips has, in every essential particular, been complied with, and that the proceedings of the court of consulado were properly admitted as evidence to prove the amount paid by Gowen, and the purpose for which it was paid.

It was further objected that there was no evidence that the money paid was the property of the plaintiffs, or that Gowen was sued as the agent of the plaintiffs. It appears by the case, however, that Gowen required, before he paid the money, a warrantee from Endara, the attorney of Oizen; and lhat he was answered by the attorney, lhat lie did not consider himself under any obligation to furnish the warrantee, as the decision of the arbitrators expressly declares that Gowen cannot avail himself of the argument of Ms having remitted the funds to the persons interested in the cargo. This is presumptive proof at least that Gowen had remitted the proceeds of the cargo to his principals, and lhat the money recovered from him was the property of his firm.

In answer to the objection that the award was against Gowen individually, and not against his firm, it was shown by the counsel for the defendants in error, and to my satisfaction, that by the civil law of Spain, it is not necessary to institute a suit against all the partners of a firm, and therefore, that the captain had a right to select whom he would sue. That Gowen acted as the representative of his house is evident from all the circumstances of the case; the instrument of indemnity was given to the firm ; the cargo came to the firm, and the document stating the account is in the name of the firm. I think, therefore, that the proof that Gowen was sued as the agent of his house is sufficiently clear.

On the whole, it appears to me that enough was shewn to authorize the conclusion that the proceedings were legal, and that the monies recovered from Packard & Gowen by Miguel Oizen were the costs, damages and expenses, from which it was intended they should be warranted by I he agreement of the 15th of August, 1815, entered into by the plaintiffs in error. I am of opinion, therefore, that the judgment of the supreme court ought to be in all things affirmed.

By Mr. Senator Beardsley.

No evidence was offered in the court below by the defendants, (the present plaintiffs in error,) except the printed book said to contain the commercial code of Havana, and the proof offered in conneclion therewith, except some testimony tending to excile a suspicion that the whole of the proceedings were not set forth in the document produced as the record of the proceedings in the court of consulado at Havana.

Did the court err in rejecting this testimony offered 1 Clearly not. The unwritten or common law of a foreign country may be proved by learned men acquainted with that law ; but a statute, charter or ordinance of a foreign government must be otherwise proved ; an exemplification or sworn copy is required. 6 Crunch, 274. 1 Johns. R. 394. 3 Crunch, 187. 1 Johns. R. 394.

The offer was to prove the commercial code or royal charter by reading from a printed book, not printed by authority ; nor did the defendants offer to prove that the witness had ever compared it with the original. The laws of a sister state, or even our own, would not be received in evidence upon such proof. The case of Lacon v. Higgins, 3 Starkie, 178, found in 14 Com. Law Reports, 176, is relied upon by the defendant’s counsel. In that case, to prove the law of France in relation to marriages, the French vice consul was called as a witness, who produced a book, which he said contained the French code, upon which he acted at his office; that there was in Paris an office for printing the laws of France, called the royal printing office, where the laws were printed by authority of the French government; the book purported to have been printed at that office, and contained a body of French laws and a commentary upon them, and the witness stated that the book would have been acted upon in any of the French courts. It was insisted that the book, coupled with the paroi proof, was sufficient; and on the authority of The King v. Picton, 30 Howell's State Trials, 514, Chief Justice Abbott admitted the evidence, although he doubted its propriety. In the case of The King v. Picton, at page 494, it seems that the objection was waived, so that this case does not sustain the learned judge in admitting the evidence. In Chanoine v. Fowler, 3 Wendell, 173, an offer to prove the French code, in substantially the same manner, was decided by the supreme court to be insufficient ;• and the case of Church v. Hubbard, 2 Cranch, 236, is relied upon as authority. The cases of Lacon v. Higgins, 3 Starkie, 178, and Chanoine v. Fowler, 3 Wendell, 173, are much stronger cases than the present; because, in those cases, the books containing the French code were produced and identified by official agents of the French government as official publications ; yet with the corroborating testimony of the agents, the propriety of receiving the books in evidence, according to strict common law rules of evidence, may well be doubled. But granting that Chief Justice Abbott was right in admitting the evidence, and our supreme court wrong in rejecting it, it by no means follows that the proof offered in this cause was sufficient. The rules of evidence in relation to foreign laws are well settled, and if they operate with too much severity, the legislature can apply the remedy.

The printed book having been rejected, it can hardly be necessary to comment on its contents ; but from extracts set forth in the case, I can discover nothing that militates against the plaintiff’s right to recover.

The testimony of the witness who was sworn for the defendants to prove the practice of the court of consulado, and to explain the mode of making up records in that court, and to impeach the validity of the record offered, appears to me not to vary the rights of the parties. In fact, a considerable part of his testimony in relation to the record appears to be more a matter of inference than positive proof.

The question then arises, did the plaintiffs below make out a prima facie right to recover 1 They proved the agreement to indemnify Messrs. Packard and Gowen against all damages and costs which might arise in consequence of any law suit which had or might be brought by Captain Olzen of the Swedish ship Fortuna, &c. They also proved that the plaintiffs below composed the firm of Packard and Gowen ; and that before their attorney commenced this suit, he either spoke to Mr. Hill or dropped him a note in relation to the claim, and Mr. Hill, instead of denying the plaintiff’s right, requested that it might be arbitrated at Boston. In addition to this evidence, the plaintiffs introduced a copy of the record from the court of consulado, from which it appeared that an award and adjudication was made against Gowen in relation to the subject matter of the agreement; and it also appeared from the record that Gowen had paid the money.

The jury by their verdict find that the firm of Packard and Gowen was composed of the plaintiffs; and their verdict goes to establish the fact that Goxven, as the agent of the plaintiffs, was compelled to pay the money. In this court, every reasonable intendment should be made in favor of the finding of the jury in the court below ; and if this court was now sitting as a jury to decide upon the questions of fact, they probably would not materially err in coming to the same conclusion.

Several objections were made by the defendants below to the admission of the Spanish record. It was objected that it was not sufficiently authenticated. The record was certified by the second notary of the consulado, the seal of the royal college of notaries affixed, (the court of consulado having no seal,) and to this was added the official certificate of Michael Hogan, commercial agent of the United States at Havana, that full faith and credit was to be given to it; also, a certificate from the college of notaries, certifying that the person signing was the keeper of records, that full faith was to be given, and certifying the seal and signatures to be genuine. In addition to this authentication, a witness testified that he examined and compared it with the original, and found it correct. It is then a sworn copy, as well as a certified one, and was properly admitted. Gardere v. Col. Ins. Co. 7 Johns. R. 514.

It is proper to remark, that the record was not introduced as the ground of action, but as evidence that the plaintiffs had been compelled to pay money, against which payments the defendants had agreed to indemnify them. If the suit had been predicated on the award or on the record, it might perhaps have been necessary to have produced the whole ; but enough is produced to shew the recovery against Gowen and the payment by him. The award and items of account set forth in the proceedings establish the fact that the recovery related to the subject matter of the defendant’s agreement, and is sufficient, prima facie, to charge the defendants.

It was objected that the recovery was had upon an arbitration extra-judicially entered into by Gowen, and therefore pot binding on Hill and Haskins,

As Hill and Haskins agreed to indemnify against suits then commenced or to be commenced, and this suit by arbitration having been commenced six months before the agreement, it is a fair presumption that they were made acquainted with, the foot when they signed the agreement. This presumption seems irresistible from the fact that Hill and Haskins never complained of bad faith on the part of Gowen, nor did they offer any testimony to that effect. An arbitration is recognized by the court of consulado, and is recommended and prescribed by the charter establishing the court. Under these circumstances, Gowen had a right in a commercial transaction, as the agent of Hill and Haskins, to arbitrate, and they were bound by it unless they dissented. Goodson v. Brooke, 4 Campb. 164.

The question now is not whether the arbitrators decided right, or whether proceedings could have been had against joint debtors where part were absent; but did Gowen, in behalf of his co-partners, pay the money 1 and was he compelled to pay it for Hill and Haskins 1 The documents show the affirmative ; and whether the recovery was right or wrong, Hill and Haskins must abide by their agreement to indemnify, unless Gowen by bad faith procured the recovery, or suffered it to be obtained by his default; nothing of which appears ; on the contrary, it appears that he resisted until his property was about to be seized.

It appears that the award was in English, and was translated into Spanish by the official interpreter, and thus translated was incorporated into the record. It is not to be supposed that the record was made up partly in English and partly in Spanish ; such a record would have been an anomaly; besides, it is stated that the original awards in the English language “ were rubricated, and returned at the request of the party.” What is meant by rubricating is not precisely understood ; but probably on being translated by the official interpreter and carried into the record, the original was marked and returned to the party. If so, it could not be necessary to produce the original to prove the payment or the liability.

Gowen paid the money, as appears from the recitals and proceedings set forth in the document; and as he acted for the plaintiffs, his co-partners, and as agent for Hill and Has-kins, it is a fair presumption, prima facie, that he paid with the funds of his co-partners; he paid for Hill and Haskins, and if not with co-partnership funds, his co-partners were liable to him, and Hill and Haskins to the firm of Packard and Gowen.

Enough of the record was produced to shew that the money had been compulsorily paid; and as the action was not brought on the record, it was not necessary to produce the whole. 2 Campb. 69. 7 Johns. R. 514. The judgment of the court below must be affirmed.

Whereupon, the judgment of the supreme court was unanimously affirmed.