6 Wend. 103 | Court for the Trial of Impeachments and Correction of Errors | 1830
The object of the bill filed in this case is to obtain from the administrators of Mactier the proceeds of the 50 pipes of brandy which came to their possession after his death, and the amount of such notes taken on the sale of the 150 pipes on the 22d of March, 1823, as were uncollected and undisposed of at the death of Mactier, or at least so much thereof as may be necessary to pay the balance due the respondent for disbursements on account of the adventure. The question on which the decision in this case, as I apprehend, mainly depends, relates to the alleged sale of the brandy to Mactier. There are many definitions of what constitutes a contract, but all of them are, of course, substantially alike. Powell slates a contract to be a transaction in which each party comes under an obligation to the other, and each reciprocally acquires a right to what is promised by the other. Powell on Cont. 4. In testing the validity of contracts many things are to be considered. The contract that the appellant sets up in this case is alleged by the respondent to be deficient in several essential requisites. When that was done which, on the assumption of there being parties capable of contracting, was necessary, as the respondent contends, to complete it, Mactier was dead. If the contract was only in progress of execution, and there remained but a single act to be done to complete it, his death rendered the performance of that act impossible ; it suspended the proceedings at the very point where they were when it occurred.
The doctrine of relation was discussed on the argument, and its application urged on us. It was insisted that if nothing but a formal act was to be done, and it was done by the surviving party after the death of the other, and in ignorance of it, this act might be adjudged to relate to a period antecedent to the death of the party dying. If, as it was held in the court below, the bargain in this case could not be closed until Frith received Mactier’s letter accepting his offer to sell, the receiving that letter, it was said, might be considered as having relation to the time when it was sent, upon the prin
I am now to consider whether there was a contract, before Mactier’s death, which had the consent of the contracting parties so given and made known as to be binding on
Where the negotiation between the contracting parties residing at a distance from each other is conducted, as it usually is by letters, it is necessary, in order that their minds may meet, that the will of the party making the proposition to sell should continue until his letter shall have reached the other, and he shall have signified, or at least had an opportunity to signify his acceptance of the proposition. This, Pothier holds to be the legal presumption unless the contrary appears. His language is: Cette volente est presumee tant qu’il ne parait rien de contrarie. This doctrine, which presumes the continuance of a willingness to contract after it has been manifested by an offer, is not confined to the civil law and the codes of those nations which have constructed their systems with the materials drawn from that exhaustless store-house of jurisprudence: it is found in the common law; indeed, it exists, of necessity, wherever the power to contract exists in parties separated from each other. The rule of the common law is, that wherever the existence of a particular subject matter or relation has been once proved, its continuance is presumed till proof be given to the contrary, or till a different presumption be afforded by the nature of the subject matter. 16 East, 55. 3 Stark. Ev. 1252. The case of Adams v. Lindsell, 1 Barn, & Ald. 681, proceeds upon and affirms the principle, that the willingness to contract thus manifested is presumed to continue for the time limited, and,
The principle of the decision of the king’s bench is simply that the acceptance of an offer made, through the medium of a letter, binds the bargain if the party making the offer has not revoked if, as he has a right to do before it is accepted. The rule laid down by the supreme court of Massachusetts regards the contract as incomplete until the party making the offer is notified of the acceptance, or until the time when he should have received it, the party accepting
Testing the rules of law laid down in the two cases to which I have referred by the authority of reason, and the practical results that are likely to flow from them, it does appear to me, that we are not left at liberty to hesitate about
/ What shall constitute an acceptance will depend, in a great measure, upon circumstances. The mere determination of the mind, unacted on, can never be an acceptance. Where the offer is by letter, the usual mode of acceptance is the sending of a letter announcing a consent to accept; where it is made by a messenger, a determination to accept, returned through him or sent by another, would seem to be all the law requires, if the contract may be consummated without writing. There are other modes which are equally conclusive upon the parties: keeping silence, under certain circumstances, is an assent to a proposition ; any thing that shall amount to a manifestation of a formed determination to accept, communicated or put in the proper way
I will now apply this law to the facts of this case. Frith’s offer to sell his interest in the brandy certainly continued till his letter of the 24th of December was received at New-York and Mactier had a fair opportunity to answer it. If the answer of the 17th of January had contained an unqualified acceptance, the bargain would have been closed when it was sent away for Jacmel; but the offer was not then accepted; there was a promise to accept upon a contingency, for Mac-tier says, after alluding to the prospect of a war between France and Spain, “ in which case,” that is, in case of such a war, “ I will at once decide to take the adventure to my own account.” This concluded nothing. If the event had actually happened, and Frith had insisted on enforcing this conditional acceptance, it would not have been in his power to do so. The most that Mactier said was, that if an expected event happened, he would do an act which would complete the bargain. The happening of the event could not, without the act, complete it. The Roman law regarded the tense of the verb used by the contracting parties to determine whether the bargain was concluded : Verbum imperfecti temporis rent adhuc imperfectam dgnijicat. There is a wide difference between a promise to give an assent to a proposition for a contract on the happening of a contingency, and the annunciation of a present assent to it. If the expected event happens, and the act promised is performed, the bargain is closed ; but it is the promised acceptance, and not the happening of the event, that gives validity to the contract. If in this case the offer of Frith had been to Mactier to take the brandy on the happening of a French and Spanish war, and
To conclude the bargain, Maetier must have accepted the offer as tendered to him by Frith, and that acceptance must have been while the offer, in contemplation of law, was still held out to him. That there was an acceptance, or rather that Maetier did all that was incumbent on him to do, to effect an acceptance, was not denied ; but it was insisted, on-the part of the respondent, that it was made after the offer was withdrawn. It will be necessary to consider when this acceptance took place, as preparatory to settling the fact of the continuance of the offer down to that time. There is not the slightest evidence of the determination on the part of Maetier to take the brandy before the 17th day of March. The insurance that he effected on his commissions on the 1st of March disproves the existence of such a determination on that day; but if the situation of the parties was changed, and Frith was now endeavoring to set up the contract, I am at a loss to conceive how Mactier’s representatives could withstand the force of the facts which took place on the 17th of March. In answer to the offer, Maetier delayed coming to a determination thereon, but promised to accept it if there should be a war; on the 17th of March, when that event was considered as settled, he entered the brandy as his own property, and told his clerk that he had determined to take it. But if there should be any doubt as to the effect of this conduct, there can be none as to his subsequent acts. By a letter dated the 25th, with a postscript of the 31st of March, he accepted the offer. This letter was immediately transmitted to Frith, and as soon as the 28lh of March, entries were made in his books shewing that he had
An offer, when once made, continues, as I have heretofore shewn, to the satisfaction of my own mind at least, until it is expressly revoked, or until circumstances authorize a presumption that it is revoked. The offer itself may shew very clearly when the presumption of revocation attaches. Where it is made to be replied to by return mail, the parly to whom it is addressed must at once perceive that it is not to stand for an acceptance, to be transmitted after that mail. If an offer stands until it is expressly withdrawn, or is presumed to be withdrawn, whether it is held out to a parly at a particular period or not, is a matter of fact. Then we are to determine, as a matter of fact, whether Frith’s offer was held out for Mactier’s acceptance until the 31st of March; if Frith intended it should stand on, and he viewed himself as tendering it to Mactier down to that time, w7e are bound to regard it as standing, unless his intention was the result of the fraudulent conduct of Mactier. The acts of Frith, after the death of Mactier, could do nothing towards completing an unfinished contract; but I think they may be fairly adverted to for the purpose of ascertaining his intentions in relation to the continuance of his offer. On the 7th of March he acknowledges Mactier’s letter of the 17lh January, which did not decline, as it has been construed to do, the offer, but apprized him that it was kept under advisement; and by using (he expression, “ noting the contents,” Frith is, I think, to be understood as yielding to the proposed delay. If a doubt as to this construction of that letter could spring up in the mind, it would be at once removed by the perusal of the letter of the 28th of the same month. In that he expresses a wish to confirm what he had said in the letter making the offer to sell, and declares that he had in a previous letter, which must mean that of the 7th, omitted to communicate the same thing. In answering Maclier’s letter which contained the acceptance of his offer, he recognizes the bargain as closed, and gives directions as to investing the proceeds of the brandy. All the subsequent correspondence acquiesces in the
Where both parties are under a mistake as to the existence of the thing contracted to be sold, the bargain fails. The cases put by Polhier and Chancellor Kent are, the sale of a horse which happens to be dead, or of a house consumed by fire before the contract was concluded. The law which has been applied to such cases is not, in my judgment, applicable to this. Property that has no actual existence is the subject of a valid contract of sale, as a carriage not yet made, or a crop not grown ; they are considered to have a potential existence. A person may sell an article to which he has no title or pretence of title. Pothier Traite du Contrat de Vente, p. 1, § 2 art. 1. There is, I apprehend, no just ground for saying that the principal part of this brandy was not in existence on the 31st of March, the time when I consider the contract to have become perfected. Fifty pipes were in the public store; the remainder had been sold but a few days before, and was probably but partially consumed ; but whether it was or not is not, in my view of it, material to this case. If the contract was obligatory on one, it was on both. Could Mactier have objected to it, and placed its nullity on the ground that he had consumed a part of the brandy before he accepted the offer for the purchase 1 Such a defence would not be listened to in any court; it could invoke no principle of justice to its aid.
Another objection to the contract was drawn from the alleged fraudulent conduct of Mactier. The bill does not seem to me to put the claim to the interference of the court below specifically upon that ground. It does not seek to avoid the contract on the ground that Frith was inveigled into it by the contrivance and artifice of Mactier, but it denies the exis
The law in relation to the right of the vendor of goods to stop them during their transit to the purchaser, was much discussed on the argument; but I have been unable to discover how a question, in relation to such a right, can properly arise from the facts in this case. If there was not a sale, such a question certainly cannot arise, for then there would be no vendor or vendee, and consequently no transit of the the brandy from the one to the other. If there was a sale, (and I hold there was,) the question does not arise, because there was in fact no stoppage or any act that can in law be regarded as amounting to a stoppage. By virtue of the purchase the title to the brandy vested in Mactier; no actual delivery, if it was not in his possession, was necessary to perfect his title ; if the brandy had been destroyed on the first day of April, or the notes taken for the portion previously sold had proved utterly valueless, the loss would have fallen entirely on Mac-
A question asked by Lord Kenyon, in Toole v. Hollingworth, 5 T. R. 226, has given rise to a suggestion, that death prevents the delivery ; bujt the doubt entertained by that eminent judge did not spring from a case where there had been a sale. Tire property there had been sent to answer a particular purpose, which was to raise funds to meet the consignee’s acceptance; he, having becoming unable by reason of his insolvency to use them for that purpose, had no interest in them that went to his assignees. Where there is a general trading between two merchants residing at a distance from each other, and goods are sent by one to the other without being ordered, the title to them would not vest, as I conceive, in the merchant to whom they were sent until they were received and accepted. If he at once returned them as unfit for his use, or for any other cause, the title to them would not, in my opinion, have been changed. In such a
Waiving all the other difficulties that were presented in opposition to Frith’s right to stop the 50 pipes of brand}1, and granting at the same lime that he had the right, and that they were to be considered as in their transit while they remained in the custody of the custom house officer at NevvYork, it may be asked what did he do to slay the delivery of them to the administrators of Mactier ? Did he make an effort to get possession of them 1 did he forbid the public officer to deliver them to (he administrators'? This I believe is not pretended. The administrators took possession of them in May or June, and sold them about that lime as a part of the estate of their intestate, and the first act in relation to them on the part of Frith was in July. They had a right to the brandy as property vested in Mactier at the time of his death by virtue of the contract of sale; and they can rightfully hold the avails thereof, unless Frith had rescinded the contract by stopping the brandy in its transit before it came to their actual possession. This he did not do, nor did he perform any other act equivalent to it.
Upon the view of the whole of this case, I entertain the opinion that the decree of the chancellor ought to be reversed.
From the pleadings and testimony in the cause, there can be no ground for the assumption set up by the respondent that he was the sole owner, and was alone interested in the brandy. The answer of the appellants is, in my opinion, substantially supported by the proofs. We are then to assume that the intestate and respondents were partners, or jointly interested in the two hundred pipes of brandy; to share equally in the profits, or to bear the loss jointly, if any should be sustained. The transaction was to be extended so as ultimately to pay the invoice cost in France by a shipment of coffee from the West Indies, which latter operation was to result from provisions shipped from the country to the West Indies. It is worthy of notice that by the arrangement the brandy was to be shipped from France for New-York in an American vessel, and the coffee was to be sent in a French bottom from the West Indies; and this undoubtedly with a view to advantages to result to the parties to the speculation.
The respondent, by his letter, dated September 5th, 1822, to his agents in France, having ordered the brandy to be sent out to the consignment of the intestate, and directing the invoice amount to be insured, on the 24lh December, 1822, wrote the intestate to the following effect: “I also have the pleasure of handing you copies of Messrs. Firebrace, Davidson & Co.’s letters regarding the. brandy order. By the bye, as your brother, before I left New-York, declined taking the interest I offered him in this speculation, and wishing to confine myself on business as much as possible, so as to bring my concerns to a certain focus, I would propose to you to take the adventure solely on your own account, holding the value to cover the transaction to my account in New-York.”
This, it appears to me, is a distinct and unconditional offer to dispose of the interest and property in the shipment of brandy at its value: that is, the invoice cost in France, or its value or price in the market of consumption. And in this case, it cannot, I apprehend, be material which was intended by the respondent, because the question here presented does not involve that particular inquiry. And if the offer was accepted, the intestate was only to carry the amount
On the 17th January, 1823, the intestate, in answer to this proposition, wrote as follows: “ I thank you for sending me the copy of Firebrace, Davidson & Co.’s letter on the subject of the brandy order. This has been, from the first, a favorite speculation with me, and am pleased to say it still promises a favorable result; but to render it complete, I am desirous the speculation should go forward in the way first proposed, thereby making it a treble operation. As you have however, expressed a wish that 1 should take the adventure to my own account, I shall delay coming to any determination till I again hear from you. The prospect of war between France and Spain may defeat the object of this speculation, as far as relates to the shipment of provisions hence to Hayti, to be invested in coffee for France per French vessels, in which case I will at once decide to take the adventure to my own account.” The intestate then states, as his opinion, that the war would operate to the disadvantage of the respondent in relation, I suppose, to the transactions connected with the purchase of the brandy and the shipment of coffee to France. This letter, although it is not an acceptance of the proposition contained in the respondent’s to take immediate effect, is not a rejection of it; the intestate replies, he should delay coming to any determination in regard to the wish expressed that he should take the adventure on his own account, until he again heard from the respondent ; and in another part of the letter he states, that should a war intervene between France and Spain, which would, he assumes, defeat the objects of the speculation in the particulars therein enumerated, he would decide to take the adventure to his own account.
Under date of March 7th, 1823, the respondent wrote the intestate, acknowledging the receipt of the letter dated January 17th, above referred to; but nothing is said about this letter, except that the contents were noticed. The letter from the intestate to the respondent, dated March 13th, 1823, advised the respondent that he had been informed of
On the 28th March, 1823, the respondent Wrote the in- • testate to the following effect, in relation to the brandy transaction : ,ee I have not heard any thing more from- Firebrace, Davidson &" Co. respecting the brandy, but I have little doubt of its having got out to you'long ere this, unless the. rupture which we have a report of between France and Spain, took place before the sailing of1 the vessel, or that she-has been captured by the Spaniards; if either be the case, it would be a pity, as its safe arrival with you would be much enhanced if thei;e be a war. -With respect to this adventure, I xvou!d wish you to confirmif altogether satisfactory to you,"what I mentioned to you some time ago, and-which I omitted* -to repeat to you in my previous letter in reply to jours of the 17th January. I find tlfb more one does in this country, in' the present state of trade, the more one’s affairs get shackled.”-' The letter here mentioned as the one in reply to that of the 17th January, is the letter from the respondent, to the intes-. «ate, underdate of March .7th, 1823. It is alleged that the above, under date of March 28th, did not arrive at its" destination until after the, death of the intestate. ■ -
But what inference can ,properly, and without violence, be' drawñ from the contents of this last letter -from the respondent? What is the plain and fair import of it ? It appears to me the respondent-fully acquiesced iti the proposal .of the intestate to consider the oilers made by the letter of .the ,24th December, 1822," as open, and still at the .option of the intestate to accept or refuse, as he'might" think' proper. - The respondent’s mind had probably at all times -no other inclination than to hold his offers open to the intestate, and lie had so intended to have expressed himself in bis reply under date '
Then, under date of March 25th, 1823, and within the time above assumed, the intestate wrote the respondent and said : “ I have now to advise the arrival of the French ship La Claire with the 200 pipes of brand}?, and that in consequence of the probability of war between France and Spain, and in compliance with the wish expresad in your regarded favor of the 24th December, and my answer thereto of the 17th January last, I have decided to take this adventure to my own account. I therefore credit you with the amount of the invoice, say fr. 76978-58, which, at the exchange of the day, 5-40, makes the sum of $14,254//^, of which you will plea'se to take note.” Here the intestate closed with the respondent’s proposal; and was it done in time to constitute a contract binding upon the parties 1 . On the 21st of April following, the respondent wrote the intestate, advising him of- the receipt of the above letter of the 25th March, noting particularly the contents, to which lie had replied, he says, by his previous respects; and although be was then indebted to the intestate in a considerable sum, if we do not take into view the amount of the price or value of the brandy, he requested the intestate to charter on his account a staunch first class vessel, and send out to him by her a valuable cargo of provisions and merchandizes; the vessel to proceed
Upon a rigid and critical examination of the correspondence and the testimony, I am unable to perceive that the respondent ever intimated to the intestate that he withdrew his proposition of the 24th December, offering to dispose of his interest in his shipment of brandy, or that he considered the intestate’s letter of the 17th January as a rejection of that offer; but, on the other hand, the letter from the respondent of the 28th March shews pretty clearly, not only that this was not so considered by him, but (hat he wished to confirm what he had previously written, urging the intestate to close with the oiler upon the terms proposed in the letter of the 24th December. This would not probably have been done in the terms here used, if the proposition for the sale liad been considered as rejected.
It cannot, I apprehend, be contented with any probability of success, that the respondent’s letter of the 21st April contains any matter which goes to shew he did not consider the first offer of sale on his part, as still open. The respondent must have known, and did know no doubt, that when lie wrote this last letter, his previous letter to the intestate, dated March 28lh, had not been received when the letter under date of March 25th was written, advising that the adventure had been taken agreeably to the proposition contained in the respondent’s letter of the 24(h December.
In my opinion it was competent for the respondent to have limited the time in which his offer might have been accepted, and to have stated, if you accept by the 1st of April, it will be in time, or he might, have left the proposals open indefinitely, When advised of the safe arrival of the brandy, and that the intestate had decided to take it to iris own account, and while he still supposed the intestate was alive, the re
If this, mode of reasoning, in relation to the .facts in 'this case be correct, and the intéstate accepted of an offer tendered to him by the respondent, then was it necessary for the intestate .to know, before the contract was finally .closed and binding upon the parties, to it, whether the respondent,., assented or not 1
This .brings me to a consideration of the law involved" in . ‘ this case. •_ ' iV
'In the construction of contracts and agreements, the in- . tenlion of th.e"parties and the substance, of. the. contract are' to be sought for mofe than the forth of the words-. Pothier says we ought to examine what was the common intent of. the contracting parties, rather than the 'grammatical" sense of the " terms; 2 Comyn on Contracts, 533; and Plowden laj's down a rule, that in contracts it is not. material which of the. ■ parlies speak "the words, if the" other, agrees to them-; for the • agreement .of the minds of the parties is the only thing the ' , law respects in contracts; arid such words as express the.;a.ssent pf: the parties and have substance4 in them are sufficient." .And again ; if any persons are agreed upon a thing, and words'are expressed or written to make the agreement, although they are not apt and..usual words, yet, if-they have .substance in them tending to - the effect proposed, the law ' • will take them to be"of the same effect as usual words; for the law always regards the intention of the partiesj" and will ', apply the words to that which in common presumption may be given to their intent. Chief Baron Comyn also .states, that.. an agreement or contract" shall have a reasonable construction according to the intent o.f the parties; and" the rule of construction adopted by the. courts in this state and in England, is that in -case of doubt, the -words of a promise or cov- " enant shall be taken -most" strongly against the pfomissor or ' covenantor; An agreement is aggregatlo mentium; that is,
These general principles appear to be full of sound sense and good reason. A review of the numerous adjudged cases which have a bearing either directly or indirectly upon the questions now under consideration, seems to me not necessary, I shall therefore advert to one of them only.
The case of Cook v. Ludlow, 5 Bos. & Pul. 2 N. R. 119, was this: The defendant, who resided near Bristol, by letter requested the plaintiff, who lived in London, to send by any conveyance which would reach Bristol, a patent chaff-cutter and two or three pairs of knives, and also" requested. that he might be informed when the same were sent, that he might know when and where to send for the articles. The articles were sent to a wharf in London, directed to the defendant, and the wharfinger’s receipt taken by the plaintiff. The defendant was advised by mail that the articles had been shipped by a vessel called "the Commerce, Chas. Forquavean. The package containing the chaff-cutter and knives was not in fact shipped for Bristol by the Commerce, but was put on board the Nancy, which left London about three months after the articles .were delivered at the wharf. No correspondence or communication passed between the parties for about fifteen months after the goods were actually shipped, when the plaintiff applied for payment of the demand, who shortly afterwards received a letter from the defendant • stating that he had hot received any chaff-cutter, although, he bad repeatedly enquired for it at Bristol until the time of the arrival of the Commerce. The plaintiff then wrote the defendant, informing him that on inquiry it, was ascertained that the package, containing the chaff-cutter, had been sent by the Nancy to Bristol, and this was the first intimation the defendant received that the chaff-cutter had been sent by this vessel. Tlie question in this, case was, whether the plaintiff was entitled to recover, and the court held he was, observing, the article was sent in the common course ac
Entertaining no doubt of the fact that the respondent at all times, up to the 21st of April, considered his offer of the 24th of December, 1822, as open to the intestate for his acceptance upon the terms offered, the letter of acceptance of the 25th of March, 1823, closing with the terms of the offer, consummated a valid and binding contract between the parties; and from that time the intestate was liable to the respondent for the full amount of the'value. But it is now urged by the respondent that certain information was withheld by the intestate, and that he has lost the interest on the amount, and that there was a difference in the rate of exchange, which operated against him between the time the
Having arrived at tho conclusion, that here was an absolute sale of all the right and interest of the respondent to the shipment of brandy, it now remains to enquire, whether he has a lien upon the whole or any part of it as a creditor, and whether the doctrine of stoppage in transilu, is applicable. If I am right in respect to the sale of the respondent’s interest, then clearly the transilus is gone as to one- hunched and fifty pipes of brandy, which were sold in the lifetime of the intestate; the subject was entirely out of the possession of the vendor; and I did not understand that it was contended upon the argument, that the right of the respondent to this portion of the adventure could be sustained upon this principle, if a contract liad been made.
The question in regard to (he fifty pipes seems to me, lo be presented in the following shape, and accompanied with these peculiar circumstances. The goods were in the possession of the vendor and vendee, as partners by legal construction. Tiie respondent was never in actual possession, except by the intestate ; and according to the position here assumed the goods were in the actual and uncontrolable possession of the intestate, and when the contract was finally closed, the fifty pipes of brandy lay in the public store, under the direction of the vendee, who was himself joint owner with the respondent. The iransüus of the goods, and consequently the right of stoppage, is determined by the'aclual delivery to the vendee, or by circumstances which are equivalent to actual delivery. It will continue until the place of delivery he in fact the end of the journey of the goods, and they have arrived to the possession, or under the direction of the vendee himself. 2 Kent’s Comm. 430. If the goods
But in my judgment, another yiew-of the.case is equally fatal .to the cláim here set up in régard tó this lien. The brandy had been actually "sold, and., was but of the possession . qf the defendants, .previous to the commencement -of this suit. . It had' been -taken from the custom hoúse store, the duties paid," and actually sold to bonce fide purchasers; and,1 we must here assume, without notice, before the respondenfmadé any claim. The administrators acting iii good faith, and in pursuance of ah equitable and legal- right, áre cert'áihly to-be protected, if it should be necessary for, a court of equity to1 interpose. ' ■ - •
Entertaining no doubt upon this branch of the base, and being of opinion that the respondent, is not entitled to have . the decree modified so as "to give him. a claim" upon the fifty’" pipes of brandy, or- the proceeds thereof, in the hands of the; administrators, i am of opinion thaf.so much of the decree of the court "of chancery as is-appealed frojn be reversed "that the respondent’s first exception .to the master’s report' ' be disallowed, and-that the appellants recover their costs for prosecuting their appeal"in this court. " :"
On the-subject of costs’in this court, as ,they rest in discretion, it might perhaps be" deemed equitable that- neither party should have costs: but the appellants are prosecuting "this appeal not in’their own right, but as the personal representatives of the deceased,, and to protect the interests of' the general creditors. And if, as is is here supposed, the respondent has no rights but those of a general creditor,- it' is not perceived why he should be entitled -to any peculiar favor, when his case is not one of greater hardship than any one of those against whom he has been litigating; ' :
The most material question for discussion in this case, is whether the respondent, John A. Frith, was the owner of the brandy mentioned in the case, or of any part thereof, at the time of the sale of a part by Henry Mactier, and of the residue at the period of his death ; or whether Frith had sold his interest, whatever it had been, in that brandy to Mactier. • From the letter of Mactier to Frith, of the 4th of September 1822, and the order of Frith of the day following, it is evident, that the brandy was purchased in France, on the joint account of Frith and Mactier. The agreement was that Frith should order the brandy, that Mactier should ship to Frith at Jacmel the invoice price of the brandy, in provisions, from the sale of which, Frith was to make a shipment of coffee to France, to pay for the brandy, and the parties were to share equally in the speculation “ all around.” The testimony of Alexander Mactier, proves also, that such was the arrangement, and that it was clearly so understood by Frith. The brandy having been ordered on the joint account of Frith and Mactier, I agree perfectly with the chancellor in opinion, that Frith never was the “sole owner of the brandy.” It is now contended that the decree is wrong, in giving to Frith the proceeds of the whole, even if he were entitled to a specific lien upon the brandy, to the extent of his interest. The conclusion to which I have arrived on the main question, renders a decision of this unnecessary.
On the 24th of December, 1822, Frith wrote from Jacmel to Mactier, conveying letters regarding the order for the brandy, and proposed to him to “ take the adventure solely on his own account, holding the value to cover the transaction to the account of Frith.” Mactier answered this letter on the 17lh January, 1823, and informed Frith that he was desirous the speculation should go forward in the way first proposed, thereby making it “a treble operation;” and declaring that “ he should delay coming to any determination until he again heard from him.” He promised also, in the event of war between France and Spain, the prospect of which he mentioned, to decide at once “ to take the adven-,, ture to his own account.” This was undoubtedly such an
On the 25th and 31st of March, Mactier wrote to Frith that he had decided to take the brandy to his own account, according to the proposition contained in the letter of the Mlh of December, 1822, and his own engagement in his letter in answer thereto, the contingency upon which it was made having occurred, and informed him that he had carried lo his account the invoice price thereof, at a specified rate of exchange. The 21st of April, Frith answered this letter and another of (he 5th, and assured him that he had “ noted their respective contents,” and refers him to his own letters of the 28th of March and 12th of April, for a reply. Frith wrote again on the 22d of April, confirming his letter of the day before, and again the 6th of May, confirming both the last mentioned letters, and on the 15th of May, confirming the last preceding letter. The brandy arrived, and was landed on the 15th of March, and on the 10th of April, Mactier died.
The question is then presented for decision, whether this ■ correspondence and these acts of the parties constitute a sale of the brandy.
To- make a contract there must be an agreement—a meeting of the minds of the .contracting parties. On the 28th ^ March the minds of these parties certainly did meet. On that day, Frith wrote to Mactier, renewing and confirming his previous proposition to him “to take the adventure to bis sole account,” and on that day Mactier actually did take It to his “ sole account.” Here was an actual meeting of the minds of the parties on the subject of the contract, and a decisive act of one of them, giving it entire effect. If the meeting of the minds of (he parties, accompanied by the only act necessary to give complete effect to the contemplated contract, are all the circumstances requisite to constitute a valid contract, then there was in this instance a sale of the commodity in question. But his honor, the chancellor, has said, that, “ to make a valid contract, it is not only necessary that the minds of the contracting parties should meet, but they should know that fact.” If this be a correct principle,
It is alleged that three fourths of the brandy had been sold by Mactier at a profit, before he decided to comply with the proposition, and that a knowledge of that fact was essential to Frith, to enable him to act understandingly, and that he ought not to be bound, because it had not been communicated. The parlies intended, when they engaged in the adventure, that the brandy should arrived in New-York in or before the month of January. Frith, in his letter of March 28th, expresses the opinion that it had arrived long before that date. When he made the proposition in December, he acted upon the belief that the brandy would soon arrive, if it had not already arrived ; and when he confirmed it, he acted upon the assumption that it had then been a long time in the possession of Mactier. Frith therefore acted precisely as he would have done if he had possessed positive knowledge of its am-
It is further alleged in the bill, that by the rate of exchange specified in Mactier’s letter of the 25th of March,. Frith would have been a loser in consequence of having placed his funds in France for the payment of the brandy at
I come therefore to the conclusion that the proposition from Frith to Mactier was continued, neither rejected, revoked nor modified; that its acceptance depended upon the act of Mactier; that he did the act which alone was necessary to meet the proposition and complete the contract, in exact accordance with the mind of Frith, and to his perfect satisfaction at the time j and that consequently a sale of his interest was effected, and he was not the owner of the brandy1 at the time of the sale of a part of it by Mactier, or the resté due at his death, and that the decree of the chancellor should be reversed.
The first question which I deem important to the decision of this appeal is, was Mactier originally a joint owner with Frith in the 200 pipes of brandy 1
From the form of the order and letter of Mactier to Frith of the 4th September, 1822, the letter of Frith to Firebrace, Davidson & Co. ordering the brandy, and the testimony of Alexander Mactier, and Frith’s letter of the 24th of Decern
Did Mactier purchase the other half of the brandy 1 To answer this question, it becomes important to examine again a part of the correspondence between Frith and Mactier. Frith’s letter of the 24th of December contained, as we have seen, a distinct proposition to part with his interest in the adventure of brandy; that Mactier should take it solely to his own account; that is, take the brandy at the invoice price. All Frith wanted, was to have the brandy off his hands. On the 17lh of January, 1823, Mactier writes to Frith on the subject of their business, and in answer to the proposition of taking the brandy to his own account, he says: “ This has been from the first a favorite speculation with me, and am pleased to say it still promises a favorable result; but to render it complete, I am desirous the speculation should go forward in the way first proposed, thereby making it a treble operation; as you have, however, expressed a wish that I should take the adventure to my own account, I shall delay coming to any determination till I again hear from you. Prospects of war between France and Spain may defeat the object of this speculation, as far as relates to the shipment of provisions hence to Hayti, to be invested in coffee for France, in which case I will at once decide to take the adventure to my own account.” Thus far, I am inclined to think, there was an agreement on the part of Mactier tp accept the proposition on a certain event, and a mere postponement of accepting absolutely until he should hear from Frith, in hopes
I admit that this presumption may be rebutted by lapse of time, or by the fact that the brandy was in an unsafe or perishable condition, which is not the case here. In the present case, the continuance of the vendor’s proposition is not left to presumption alone, as in ordinary cases; Frith shows the continuance affirmatively by his letters, and thus places it beyond mere presumption, either one way or the other. He remarks in his letter of the 28th March, "with regard to this adventure, I would wish to confirm, if altogether satisfactory to you, what I mentioned to you in my previous letter, in reply to yours of the 17th of January.” It is manifest from this that he still wished to sell as he before offered. If this is not sufficient to show his intention to sell, his letters of the 21st and 22d of April, clearly prove that Frith never changed his mind as .to selling the brandy; that he considered, the offer to sell, open, and not withdrawn or retracted, but accepted ; for his letter of the 21st of April was after receiving Mac-tier’s letter, saying that he had taken the brandy. On the 25th of March/their minds meet. This completes the sale in the present case; a formal delivery of the brandy was not necessary, as it was in Mactier’s possession. It was urged on the argument, that these letters of April and May, could not confirm the sale, as Mactier died before they were written, to wit, on the tenth of April; but to my understanding, there is sufficient without these letters. It appears to me as I have before remarked, that Frith’s letter of the 28th of March, and the two in April, and his last of the 6th of May are sufficient to show that the complainant’s mind and continued desire, was to sell.
Again; in 2d Ld. Raym. 930, Holt says, “ a consent subsequent will amount to an authority precedent.” In 1 Livermore, 445, 9, per Powell, J. “ a subsequent ratification is equivalent to an original authority. Again ; “ there are three sorts of agreements; an agreement executed, an agreement subsequent to a thing done, and an agreement executory. Plowd. 5, a. 6, a. In Comyn’s Dig. tit. Agreement, A. 1, these rules are all cited. In 12 Johns. R. 300, and in 3 Cowen, 281, it is settled. “ A subsequent assent may be inferred from circumstances which the law considers equivalent to an express ratification.” In Comyn’s Dig. tit. Agreement, A. 2. An agreement executed often amounts to a bargain and sale. So where an assent subsequent is given to an act precedent, by such assent the agreement is executed. It is not then just to say this confirmation of Frith’s shall relate to the life time of Mactier. In Comyn’s Dig. tit. Bargain & Sale, it is said, “ If bargain- or or bargainee die after the indenture executed, and before enrolment, the estate passes to the bargainee and his heirs, if it be enrolled within six months, yet the seisin continues in the bargainee. Bo in Cro. Jac. 512, and Viner, tit. Relation, F. 6, per Coke & Montague, “execution of all things executory, respects the original act, and have relation thereto, and all make but one act, though done at several times. Bo, where there are divers acts concurrent to make one estate, the original act shall be preferred, and to this the other acts shall come. Bo, where two times are requisite to the perfection of an act, it shall be said upon their consummation to receive its perfection from the first. Dyer, 244. Bo, of two acts, as in Bingham’s case, 2 Co. 93. “ Where to the perfection or consummation of a thing, two accidents are requisite, and the one
The view which I have taken of this case, renders it wholly unnecessary for me to examine the point of stoppage in transitu.
Considering, then, that this agreement was consummated in the life time of Mactier, upon the principles and cases above adverted to, I have come to the conclusion that the administrators had a right to act, and would have been justifiable in taking, if they had not already done so, the brandy into their own possession, as a part of the assets of the deceased. It is laid down by Winter’s Office of Executor, 82, “ goods contracted for by testator, not delivered in his life time, must be delivered to his executors,” and I can see no good reason why the same rule should not be extended to administrators.
The view, therefore, which I have taken of this case renders it unnecessary for me to discuss the other points made on the argument; my opinion is, that the decree of the chancellor, so far as it relates to the sale of the brandy, should be reversed.
Mactier and the respondent were equally interested as partners in the triple adventure, of which the brandy shipment was the commencement, but which extended to a second shipment of provisions to the amount of the invoice cost of the brandy from New-York by Mactier to the respondent at Jacmel, and a third shipment of coffee, with the proceeds, from thence to France in French vessels, to be there applied to the payment of the brandy. The order for the brandy was sent by the respondent to his friends in Havre, the 5th of September, 1822, expecting the arrival of the shipment “at New-York, in January or before.” As early as October, however, he evinces a desire
The account current, and the correspondence show, that the respondent was largely in arrear to Mactier, and he frequently alludes to it, and excuses his inability or delay to make remittances. To have the value of the brandy shipment placed to his credit, or made to cover his transactions on account at New-Yorlc, seems to have been one prevailing object in offering to part with his interest. He also wished to bring his concerns to a certain focus, and to confine his business as much as possible ; and one other prevailing consideration was to be released from the two shipments originally planned, and consequent upon the brandy adventure. These considerations received additional weight and urgency from the prospect of a war between France and Spain, and the inevitable embarrassment of the trade of the island, thus likely to ensue, in which he was engaged. The joint adventure, in all the three operations, would in that event be subject to war risks, and even the brandy shipment became a hazardous and doubtful speculation. It was his desire to be released from all; and the tenor of all his letters evinces the continual interest which he had in effecting such an object. But the brandy had been ordered, and could not be refused by the parties ; it was afloat, or would be so, before the order could be revoked, and the consequences of this part of the adventure were inevitable. Their interest was joint, the profits or losses were to be ascertained when the third and last shipment was closed, and then to be shared equally; and neither could arrest the adventure, or be released from any part of it, except by the consent of the other.
It appears from the correspondence that these parties were on terms of intimate and confidential friendship and intercourse, and when the respondent, in his letter of the 24th December, 1822, proposed to Mactier, “ to take the adventure solely on your own account, holding the value to cover the transactions to my account in New-York,” the proposition was not probably new or unexpected to Mactier
I consider this letter as declaring with sufficient certainty, to this effect, 6 notwithstanding my information which I communicate herein, our triple operation promises a favorable result, and I shall delay till I hear from you again, and then determine upon your offer, either to take or reject. But if the prospect of war shall cut up our two adventures consequent upon this, I will at once decide to take your offer, and will lose no time in communicating the same to you. In either case, I trust you will not be a sufferer.’ I observe here, that from the tenor of this letter, and also of respondent’s enclosing the order for the brandy, both parties expected its arrival daily, and that the responden’s offer and his answer were written under such expectation, and that in the respondent’s letter of the 28th March the offer is renewed, when he supposed it had long since arrived.
That Mactier considered his reply to the offer an obligation on his part to take, so soon as the prospect of war was
But his letter of the 25th March, explains and confirms his idea that this letter of the 17th January was obligatory upon him, whether the market was good or bad. He then says, “ I have to advise the arrival of the 200 pipes of brandy, and in consequence of the probability of the war between France and Spain, and in compliance with the wish expressed in your regarded favor of the 24th December, and my answer thereto of the 17th January, I have decided to take the adventure to my own account.” In consequence he gave the respondent credit, according to his original proposition. Nothing more was wanting to prove and enforce this bargain against Mactier or his representatives, than these letters and acts. Notwithstanding the bargain was complete against Mactier, the fact of ownership, as expressed by Bane in his testimony, was contingent. The assent of the respondent was not then known; it had not been expressly given, and if the expected letter from the respondent, in reply to the one of the 17th January, had contained his dissent or a retraction of his original offer, the adventure would have been thrown back to its original state and interests.
Did the respondent ever assent to this contract, so as to vest the title of the brandy absolutely in Mactier, before his death 1 An assent to a contract may be inferred from circumstances, from voluntary inaction or forbearance to act. Thus, a man by his silence, if he has an opportunity of speak
But I consider the assent of the respondent to this contract to rest upon surer ground than any circumstance of the unsatisfactory and doubtful character of mere lapse of time. His letter of the 7th March must, under all the circumstances, be considered a legal acquiescence and consent on bis part. And while I would admit that proof of any attempt by “a swift messenger,” or any other less rapid means, to withdraw it, or to dissent from the conditional acceptance of Mactier, or to retract his original offer, would have materially weakened or annulled its effect, it is manifest that no such attempt was made, and that all the circumstances show a contrary intention. When the respondent wrote the letter of the 7lh March, Mactier’s letter of the 17th January was before him ; and if he did not wish to have his original offer stand the chances mentioned by Mactier, he was bound to have improved the first opportunity to with
But if there could be any doubts of this case, coming fully within the rule cited from Livermore, the letter of the 7th March is followed by another from the respondent of the S8th, and still another of the 21st April, each capable of showing his intention to ratify his original offer, and confirming his assent to what had been done by Maclier. On the 28th March, after expressing his expectation that the brandy had arrived long ere that time, unless the rupture, we have a report of, between France and Spain took place before the sailing of the vessel, he says: “With regard to this adventure I wish to confirm, if entirely satisfactory to you, what I mentioned to you some time ago, and which I omitted to repeat in my previous letter in reply to yours of the 17th January.” In his letter of the 21st April, he acknowledges the receipt of Mactier’s “ esteemed favor of the 25th, with that of the 5th inst. and notes particularly their respective contents, to which principally my previous respects (being his of the 28th March, and 12th current) replyand he then ordered the shipment of a cargo to him. Hence it appears, that the presumed legal effect of the letter of 7th
Under all the circumstances, I can entertain no doubt, that the letter of the 7th March, was intended, and should be considered as an express assent to the conditional acceptance and the reply of Mactier in his of the 17th January. He allowed his correspondent and confidential friend to proceed to close the bargain, as he had informed him he should do upon receipt of his letter then in writing, or upon the happening of the contingency then in prospect. His letters show of how little regard, in comparison to his anxiety to be released from the adventure, was the fact of the arrival of the brandy at New-Tork, or the price at which it would sell; his readiness to bear the joint risks of transportation, if such was the intention of Mactier, in delaying to release him before its arrival, and his willingness to wait the happening of the event referred to by Mactier, upon which he would determine to take it to his own account. Mactier died on the 10th April; but from the 21st April, (if not before,) until that event was known at Jacmel, he could not have doubted, nor (as his letters show) have regretted one moment his release from the triple adventure, nor the absolute sale of the brandy to Mactier. Shall he now be heard to complain that Mactier did not close the bargain till its safe arrival at New-York, and a sale of £ of the brandy? that he had run all the risks of the sea ? Before he does so, he must show that on the 7th March, or some other early opportunity, or in some way, he refused to encounter such risks; or dissented from any release after the brandy should have arrived, or expressed, or attempted to express, his non-concurrence to the conditional acceptance and understanding of Mactier. Both parties expected its arrival before the day when he was writing; and from the contents of Mactier’s letter of the 17th January he must have supposed it was then a long time in New-York; his letter was to encounter a further delay in its transmission, and when it should be received, Mactier would see in it the usual approbatory expression, “ I note its contents.” It would be
The doctrine of stoppage in transitu, and the question whether the representations of this or any other vendee can ratify, consent to or affirm a contract in fieri at the time of the death, do not appear to me to form appropriate or necessary inquiries in this case. The case of Conyers, &c. v. Ennis, decided by Judge Story, 2 Mason, 236, found in 6 Cowen, 116, is strong upon both these enquiries, as they are raised in the present case. Here was a period of from the 25th or 28th March to the 10th April, when Mactier died, and long afterwards, during which, both parties assented to the bargain, upon terms well understood and acceptable to both; when such consent had been committed to writing and despatched to each other, and no effort at withdrawal or dissent attempted by either, until long after the arrival of the letter, and the actual sale of the whole, and the probable consumption of a considerable portion of the subject of the contract.
My opinion therefore is, that the letters of the 24th December and 17th January assented to, explained and confirmed by the subsequent letters, acquiescence and acts of the parties, fully establish a contract of jsale, and that the decree of his honor the chancellor, in the points appealed from, should be reversed.
Whereupon, on the question being put, Shall the decree of the chancellor appealed from, be reversed % Chief Justice Savage and Justices Sutherland and Marcy, and eighteen senators voted in the affirmative; and three senators voted
The decree of the chancellor was acccordingly reversed with costs/-’
Pour que le consentement intervienne en ce cas (entre absens) il faut que la volenté de la partie qui a écrit á 1’autre pour lui proposer le marché, ait persévéré jusqu’au temps auquel sa lettre sera parvenue a 1’autre partie, et auquel 1’autre partie aura déclaré qu’elle acceptait le marché. Cette volonté estprésumée d’avoir persévéré tantqu’il ne parait rien de contraire; mais, si j’ai écrit aun marchand deLivourneune lettre, par laqueile je lui proposais de me vendre une certaine partie de marchandises, pour un certain prix, et qu’ avant que ma lettre ait pu lui parvenir, je lui en aie écrit une se. conde, par laqueile je lui marquéis queje ne voulais plus cette emplette, ou qu’ avant ce temps je sois mort,ou que j’aie perdu l’usage de la raison; quoique ce marchand de Livourne, au re$u de ma lettre, ignorant, ou mon changement de volonlé, ou ma mort, ou ma démence, ait fait réponse qu’ilacceptait le marché proposé, neanmoins il ne sera intervenu entre, nous aucun contrat de vente; car ma volonté n’ayant pas persévéré jusqu’au temps auquel ce marchand a rcgu ma lettre, et aceepté la proposition qu’ elle contenait, il ne s’ est pas recontré un consentement ou concours de nos volentés nécessaire pour former le contrat de vente. C’est l’avis de Barthole, et des autres docteurs cités par Bruneman, ad. I. 1, § 2, ff, de contrat. empt. qui out rejeté avec raison l’avis contrarié de la Glose, ad dictum legem.
TRANSLATION.
In order that this consent may take place where the contracting parties are in different places, it is necessary that the will of the party who has writ, ten to the other, proposing a sale, should continue until his letter has reach»
11 est impossible de concevoir un contrat sans le consentement de toutes les parties. Mais 51 n’est pas nécessaire que Ies volontés des parties concurrent dans le meme instant; pourvu que la volonté de celle qui n’est pas intervenue dans le principe soit déclarée avant que I’autre ait révoqué la sienne, la convention est valablement formée.
This proposition, which is an extract from the chancellor’s opinion as printed in the case presented to this court, is somewhat modified in its terms, as it appears in the reports of the court of chancery. There it is said, “ To make a valid contract, it is not only necessary that the minds of the contracting parties should meet on the subject of the contract, but they must communicate that fact to each other, so that both parties may know that their minds do meet.” 1 Paige, 442, It is understood that the chancellor has said that his views on this subject have been mistaken or misapprehended. Though the general proposition above quoted is advanced in his opinion, it is introduced in that part of it where he is considering the effect of Mactier’s letter of the 25th, and Frith’s of the 28th" of March, and what Frith intended to insert in his letter of the 7th of March. Having considered the offer of Frith, made in his letter of the 24th December disposed of by Mactier in his answer of the 17th January, declining to accept it, he then looks at the letters of the 25th and 28th of March to see if a contract was concluded by them ; and as Mactier died before his letter of the 25th reached Frith, and before Frith’s letter of the 28th renewing the offer reached New-York, he considers those letters did not of themselves make a valid contract. The remark of the chancellor which has been taken for a general proposition of law isjunderstood to have been made with a direct reference to the facts presented by these two letters. Taking this view of the-chancellor’s observation, the principal point of difference between him and the court for the correction of errors would seem tobe, that he considered Mactier’s letter of the 17th January as declining the offer, and therefore putting an end to it; and the court considered that Mactier’s answer held the offer under advisement, that it was so held down to the time when M. accepted it, and that Frith asseuted to its being thus held under advisement.
In settling the decree in this case a question arose whether costs should be allowed to the appellant. Mr. Justice Marcy, who delivered the leading opinion in the case, was against allowing costs, Chief Justice Savage and Mr. Senator Maynard concurred with him. Mr. Justice Sutherland and Mr. Senator Benton were of opinion that there was nothing in the circumstances of .the case entitling the respondent to an exemption from the payment of costs. On the question of costs the members of the court stood, 14 to 12.