Welsh v. Dusar

Tilghman C. J. This is a motion fora new trial. The cause was tried before me at Nisi Prius, when the dispute was principally on two points. 1st, Whether Richard Edwards was intitled to any and what commissions. 2d, Whether in shipping the goods in which his commissions were [336] to be invested in Batavia, he was intitled to a preference to 'the defendant, the owner of the ship. With regard to the first point, the defendant contended, that Edwards was intitled to no commissions at all, because he died before the completion of the voyage. My opinion was, that he was intitled to a compensation in proportion to the service performed; and as that opinion has not been objected to, it is unnecessary to say any thing more on the point. On the second point, the opinion which I delivered, and which I still retain, was, that Edwards was not intitled to a preference, but he and the defendant stood on the same ground. This question depends chiefly on the articles, signed by the shippers, which, although not signed by either Edwards or the defendant, were undoubtedly adopted and acted upon by both, so that they are to be considered as parties. In these articles, dated 22d August 1803 there is the following clause — 44 The freight which is to be 25 per cent. 44 on the sum shipped, is to be paid in Batavia, and invested 44 in the said ship Calliope or Martha, on account of Florid 41 mond Dusar; the commission which is to be 4 per cent, is 44 also to be paid in Batavia, and invested on account of' 44 Richard Edwards,,but after the property of the shippers 44 is all on board.” These last expressions44 after the property 44 of the shippers is all on board,” are to be applied to all the preceding parts of the clause, that is to say, both to the investments of freight, and of commission. To restrain them, as contended for by the plaintiff, to the commissions, would leave the shippers unprotected against the shipment of the proceeds of the freight, in case there should not he room enough for both. This would be fin unreasonable construction; for it must be supposed, that the shippers who paid 25 per cent, for freight, intended to provide that at all events their own goods should be first put on board. And this supposition is very much strengthened, by the instructions from the defendant to Edwards, dated September fth, 1803, and signed both by the defendant and the shippers. In these instructions are the following directions.44 The only equita44 ble mode to ship such a cargo, is, to make out a separate 44 invoice for each shipper, properly numbered and marked 44 with their different marks. Then my freight as owner, [337] “ your commissions, and the officer’s privileges, may be in- “ vested and stowed in bulk to the best advantage amongst “ the cargo.” Here seems to be no idea of any preference to the commissions. Indeed these instructions are not to be reconciled with such a preference. Now the jury have gone directly contrary to the law; for their verdict is founded on the principle of Edwards’s preference. The construction of written instruments is the province of the court; and it is of the utmost importance, that this province should not be invaded by the jury. The certainty and uniformity of the law very much depend on it. At the same time, I shall be extremely careful not to invade those rights which the law has vested in the jury. This verdict is in another respect contrary to law. Edwards was intitled to an apportionment of the commission, but had no pretence to claim the whole. But the verdict cannot be supported unless he was intitled to the whole. I am very clear therefore that there should be a new trial; but there is a condition which I would annex to it: and that is, that the defendant should try the cause on its merits, without objecting to the form of the action, or to the declaration. As the law now stands, under our acts of assembly, the plaintiff would be intitled to an amendment. But it is a case of a very singular nature, and an amendment might involve the plaintiff in difficulties, to which I think under all circumstances he ought not to be exposed. Yeates J. of the same opinion. Brackenridge J. of the same opinion. New Trial awarded»-.