5 Johns. Ch. 417 | New York Court of Chancery | 1821
The sole question in the case is, whether the defendants, G. and B., are accountable to the plaintiffs for the proceeds which they have received of the return cargo of the schooner Good Hope. The defendants, G. and B., claim those proceeds, (which amount, after deducting all charges, and the freight, to the net sum of 10,722 dollars and 65 cents,) by virtue of. an assignment from the defendant U., of the 26th of December, 1818, executed about the time the vessel sailed from Porto Cabello, in South America, for New-York. The plaintiff alleges, that the cargo was exclusively his property, though covered with the name of the defendant if., in order to protect it from Spanish cruizers ; and the defendant H. admits, that the plaintiff had a joint and equal interest with him in that cargo.
The answers of the defendants, G. and B., disclose the manner in which the assignment was taken, and the causes which led to it. They state, that in October, 1818, the defendant if., being somewhat embarrassed in his pecuniary affairs, applied to them for assistance, and he promised to assign to them, by way of security for advances, certain vessels and cargoes, “ as hereinafter mentioned.” They accordingly did advance, as they say, “ at various times, during the period of one year after the said agreement,”' 47,000 dollars, and upwards, and the defendant if., in execution of that agreement, assigned to them, by deed of the 4th of November, 1818, and in trust, to secure the payment of 40,000 dollars, then already advanced, a vessel and two cargoes therein mentioned, and which form no part of the present controversy. The defendants, G. and B., were to apply the proceeds to the payment of the moneys due, and to become due to them, and to re-assign, or account for t)ie
This last assignment was evidently taken to secure antecedent advances. There is no evidence, that any advance or loan w as made upon the credit of it. The defendant H. stopped payment, and consequently avowed himself a bankrupt, on the 30th of December, and only four days after, this assignment was made. It was taken from an insolvent debtor, on the eve of bankruptcy, as additional security for an existing debt, and ought to be subjected to all the strictness applicable to an instrument taken at such a crisis. It was jiot a security taken in pursuance of the original agreement, in October. That agreement related to certain vessels and cargoes “ hereinafter mentionedbut the defendants must be understood, by these words, to refer to the subjects specified in the first assignment, and not to the return cargo in this case, for the outward voyage itself had not then commenced. It is very probable, that the defendants G. and B., from the knowledge which the defendant B. hid of the mer
Are not these slight circumstances sufficient to protect the right and interest of the plaintiff in the return cargo, against that assignment ? It was not a purchase by G. and B. in the ordinary course of commercial dealing, and the interest of G. and B. has no better pretensions, in this case, than that of the plaintiff, to protection. The defendant B., admits, what may be deemed sufficient information of the plaintiff’s right, at the time he took the last assignment, to . have put him upon inquiry, and to charge both those partners with taking the assignment subject to those rights. He was acquainted with those circumstances, which
It was observed, upon the argument, that the plaintiff had held out to the world, the defendant II. as the real owner of this return cargo, and thereby enabled II. to practise a deception upon the public., If the defendants, G. and B., could show that they had been the victims of this deception, they would have been entitled to have made the complaint. If the return cargo had arrived, and the letters of the plaintiff, and-the invoice and bill of lading had been shown-to these defendants, and trusting to them, they had made ad-' vanees upon the credit of that cargo", to the defendant H.t they would have had a fair, equitable claim to protection. But the assignment, in this case, was taken a month before the return cargo had arrived, or the documents attending it had been seen, and they are not-entitled to the benefit of any such defence. The defendant H. admits, that the return dargo was marked with his name, for the purpose stated ih the bill, of protecting it from the depredations of the Spanish cruisers, hostile to .the Spanish royalists, and he pretends only to a joint and equal interest with the plaintiff in that cargo.
If the plaintiff and H. were partners, then the interest of H. in that cargo, was his share in the surplus, subject to nil partnership accounts, and the defendants, G. and B., his assignees, are entitled only to fifis share, after a settlement of the accounts, and after all just claims qf the plaintiff were
The evidence that the plaintiff was the sole owner of the return cargo, consists principally in the letters that passed between the plaintiff and H. It is evident, from the letters of the defendant H., of the 5th of June, and of the 7th and 8th of November, 1818, that Curriel therein mentioned, was some assumed or fictitious name, and intended, the better to cover the property from depredation, to stand for the plaintiff. Then we have the declaration of the plaintiff', in his letter of the 20th of December, 1818, to B., and which was produced on the part of the defendants, that the greatest part of the return cargo was purchased with the money Mr. Cur-
I shall, accordingly, declare, “ that the defendants, G. and B., took the assignment of the 26th of December, 1818, by way of security, and in trust, principally, if not entirely, for the purpose of securing the payment of advances antecedently made, and of debts antecedently incurred, and that the same was not a sale and purchase in the ordinary course of commercial dealing; and that the defendants, G. and B., were, at the time they took the assignment, chargeable with sufficient notice of the rights of the plaintiff, to have put .them upon inquiry as to the extent thereof, and to charge them with taking the assignment, subject to all the prior rights and equities of the plaintiff, and that as the plaintiff claims to have been the sole and entire owner of the return cargo in the assignment mentioned, and as the defendant H. admits the plaintiff to have been jointly and equally interested with him, and that it be referred to a master, to inquire and ascertain the extent and quantity of interest of the plaintiff, 8zc. and to report the amount, with the interest, if any, due thereon together with the amount of the net proceeds of the return cargo, received by the defendants, G. and B., with interest thereon ; and that he call for papers, See. and examine either of the parties, on oath, &c. and that the pleadings and exhibits in this cause, be received as proof before the master, together with such further proof as the parties may offer.”
Decree accordingly.