Dunbar v. Miller

MARSHALL, Circuit Justice. The principal question in this case is: What is the complainant entitled to for the tobacco consigned by him to Miller, Hart & Co. in Sept, 1793? In- discussing this question he has made two points. 1st. That in shipping the tobacco to France his orders were violated; in consequence of which, the consignees are responsible for its value. 2d. That the account of sales they now render ought not to bind him. The nature of The trade between the consignor and consignee of tobacco, requires that a great degree of confidence should be placed by the former in the intelligence and integrity of the latter. He is frequently empowered to choose the market in which the commodity is to be disposed of. This arises from the circumstance that his situation enables him to decide on the interests of the consignor with better information than the consignor can decide for himself. A great latitude is therefore allowed for the exercise of his judgment, but it must be exercised within the limits prescribed by the consignor, or, where he is silent, within those prescribed by custom. In the case at bar, the limits prescribed by the consignor are to be looked for in the two letters of the 5th and 19th of September. The letter of the 5th contains the proposition of the consignee. He offers to receive consignments to Miller, Hart & Co. in the Molly. This vessel, he says, “goes to Cork for orders, and from thence to any one port of Europe out of the straits.” This is a plain intelligible proposition, which authorized the consignee to order the vessel to France or elsewhere in Europe, provided it was not into the Mediterranean. It is observable, that Mr. Hart then proceeds to state the advantage which Mr. Dunbar might derive from accepting it before he advances any opinion respecting the probable particular destination of the vessel. This is a circumstance which may not be entirely immaterial. It may serve to show that in the opinion of the writer, -the principal proposition was stated. After recommending a shipment in the vessel, whose orders were to be received at Cork, and whose destination from thence was to depend on the discretion of the partners in Europe, Mr. Hart proceeds to say something respecting the manner in which the discretion would probably be exercised. “If,” says he, “peace is not established in France, by the time the Molly arrives at Cork, it is most probable she will be sent to •Rotterdam or some port of Holland.” It is [1189] contended, on one side, that this-amounts to a declaration that the tobnc- > would not be sent to France if the war should continue. On the other side, that this is merely a conjecture respecting the manner in which the discretion of the consignee would be exercised without forming a limitation of that discretion. With the proposition, is to be taken into view the declaration of the sense in which it was accepted. For this purpose, the court is referred to the letter of the 19th of September. This was after the tobacco had been put on board the craft; but, as no intermediate letter is produced on either side, it is presumed that none passed which would affect the case. In the letter of the 19th of September, Mr. Dunbar says, “I hope the tobacco will get to a saving market,. as the quality is well suited to the Dutch, where I expect it will ultimately go, as appearances, I conceive, strongly indicate a continuance of the war.” That both parties believed the Molly would not be ordered to France, should the war continue, is apparent; but whether either of them designed to prohibit Miller, Hart & Co. from giving such orders, if in their judgment it should be for the benefit of the cargo to give them, is not so clear. Throwing the two letters into the form of an agreement, and construing that agreement literally, the express power given to order the Molly to any port in Europe, out of the straits, would not be restricted by any express declaration, that the right to send her to France depended on the restoration of peace. But there is great weight in the argument, that in mercantile transactions of this sort, the impressions made by the communications between the parties, ought to be-considered, and if a meaning is fairly and. justly to be implied, which the words themselves, if digested into a formal agreement, would not completely bear, that meaning ought not to be entirely disregarded by the court. Although the letter written by Mr. Hart reserves to his partners the power of ordering the Molly to any port in Europe, and does not positively restrict their exercise of this power, with regard to France, to the contingency of peace, yet its terms are such as clearly to convey the opinion, that the tobacco would not be sent to France, but on that contingency. “If,” says he, “peace is not established in France by the time the Molly arrives at Cork, it is most probable she will be sent to Rotterdam, or some port in Holland.” This reference, with respect to France, to the single contingency of peace, unconnected with the state of the market, shows, that in the mind of the writer, her being ordered to France would depend on that • contingency only. It might, certainly, be fairly so understood by Mr. Dunbar. In strict prudence, the complainant ought to have observed the equivocal expressions of the proposition, and ought to have objected to the sending of his tobacco to France, unless peace should be re-established; .but if. he understood that the general power was reserved solely for the purpose of being exercised in its extent in the event of peace—and he might so understand the letter-^he may be excused for not directing that which Miller, Hart & Oo. had declared themselves previously to have resolved on. It is believed, that no person can read that letter without a conviction, that at the time of writing it, Mr. Hart considered it as perfectly certain, that the Molly would not be ordered to France if the war should continue. The letter would not be a fair one, if such had not been his opinion. That Mr. Dunbar did believe the possibility of the power he gave, being so exercised, as to occasion the tobacco to be shipped to a port in France, depended on peace, is strongly to be inferred from his letter of the 19th of September. The whole context of that letter shows it These communications, then, are to be viewed as an agreement by which the tobacco is-consigned to Miller, Hart & Co., with, a general power to ship it from Cork, to. any port, of Europe, out. of the straits. But the application for that general power is- accompanied with a representation of the manner in which it is to be exercised, which might well be understood, and which most probably was understood, as a declaration, that the vessel would only be sent to France on the contingency of peace. Whether this representation is so strong as to charge the consignee with the loss occasioned by sending the vessel to Havre, pending the war, is a point, not absolutely decided by the court, because there is another part of the case which, renders its decision unnecessary. The agreement under which the tobacco was shipped, might be understood, in the one way or the other. If, in the opinion of Mr. Dunbar, the consignees had transcended their powers, and he did not mean to abide by their conduct, it is perfectly clear, that on mercantile principles, he should, on notice of what they had done, have declared to them..that the responsibility of their conduct rested, on themselves; that the tobacco was theirs: and that he claimed a credit for its reasonable value, at those ports to which, in conformity with the contract, they might have shipped it. He was certainly not at liberty to reserve to himself the power of taking or rejecting the sales at Havre, at his discretion; but his silence on the subject, if not an approbation of their conduct,- is an acquiescence under it. It has been contended, that this transaction was not communicated to Mr. Dunbar; but the fact will not support his counsel in this respect. His bill admits a knowledge of it when his note was given. Had the pressure of Mr. Dunbar’s circumstances been such as to leave him not a free agent in this respect, the court would not have considered his silence as a waiver of his right to object to the shipment of his tobacco to Havre. But this is not pretended. His silence, therefore, can [1190] only be attributed to one of two motives: either he chose to take the chance of a fa-vourable account of sales, or, which is more probable, he expected that the loss would not be considerable, and preferred a submission to it, to a rupture with his friends and creditors. Let this be his motive, and it will not support him in the attempt now made. If then, silence had been observed on the part of Mr. Dunbar, he would have been precluded from objecting to the act of sending the Molly to Havre. But he has not been silent. The memorandum at the foot of his note, is a complete relinquishment of all objection to that transaction, so far as a relinquishment can be implied. This memorandum is said to have been made for his advantage, and this is true. But what was the advantage he expected to derive from it? Clearly only this. It proves, that from the. note was to be deducted the tobacco, when the account of sales should be received. Why refer to the account of sales, if he did not mean to admit that he was to be bound by them? Why not claim an immediate, in stead of a future, credit, if the invoice price, or any other known standard, ascertained the credit to which he was entitled? NOTE. See a summary of the decisions of the courts of the United States, respecting the relation between principal and agent, and consignor and consignee: 1 Pet. Cond. R. 594; 2 Pet. Cond. It. 533; and 3 Pet. Cond. R. 351, in notes [Manella v. Barry. 3 Crnnch (7 U. S.) 415; Lee v. Munroe, 7 Cranc-h (11 U. S.) 366; The Frances, 9 Craneh (13 U. S.) 183], The subsequent correspondence on which the defendants rely, is certainly equivocal in its expression. But when the fact, that Mr. Dunbar had full knowledge of the Molly having been ordered to France, is ascertained, that correspondence ceases to be equivocal. It relates exclusively to the circumstance, that the sum for which Mr. Dunbar ought to be credited on account of this tobacco, is uncertain. The court, then, is perfectly • satisfied that the orders given the Molly to sail for Havre, are sanctioned by the subsequent conduct of Mr. Dunbar, after having full notice of the fact. To the account of sales which has been returned, the objections are to the commissions and to the compromise With respect to the commissions, the court has required information respecting the custom, and has stated an opinion, that only half commissions is chargeable in such cases. If there be no custom, the court will direct that only half commissions be allowed in this case. With respect to the compromise, the circumstances under which it-was made, and the deposition of Mr. Oolquhoun, satisfy the court, that it was prudent to compromise the claim. The power of the consignees probably extended to a compromise, unless it was the will of the consignor to take the transaction into his own hands. The court perceives no such disposition in him. Yet, under the circumstances of this case, it is the opinion of the court, that Miller, Hart & Co., ought to explain to the plaintiff, the terms and principles of the compromise. There is so little probability that the transaction has been unfair, that the court will not continue the injunction on that account, but will retain the suit on the docket if it be requested. 2. The accounts between the parties constitute the next subject of consideration. The court is of opinion, that any errors which may have existed in dealings carried on under the circumstances in which these parties were placed, ought to be corrected. It does not appear clearly, that a formal and complete settlement has ever taken place. The accounts were conducted under so many different forms, as to contribute something to the opinion that they have never been completely adjusted, and the early application of Mr. Dunbar on the subject, weakens the argument drawn from the time which has elapsed since accounts have been rendered. With respect to the credit claimed for difference in exchange, the arguments of the defendants themselves, if rightly understood, are in favour of it to a certain extent. The payments made before the judgment, ought certainly to be credited, according to agreement, at the current rate of exchange. The balance for which judgment was rendered, ought not to be affected by the exchange. DECREE. The injunction was perpetuated as to the net amount appearing due by the account of sales rendered, adding thereto half commissions. 2. As to the difference of exchange on payments made by Dunbar to Miller, Hart & Co., before judgment; and 3. As to the amount appearing on the commission- ■ er’s report in favour of Dunbar, growing out of erroneous calculations of interest, and was dissolved as to the residue.