Lanusse v. Barker
16 U.S. 101 (1818)

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U.S. Supreme Court

Lanusse v. Barker, 16 U.S. 3 Wheat. 101 101 (1818)

Lanusse v. Barker

16 U.S. (3 Wheat.) 101

Syllabus

B., a merchant in New York, wrote to L., a merchant in New Orleans, on 9 January, 1806, mentioning that a ship belonging to T. & Son, of Portland, was ordered to New Orleans for freight, and requesting L. to procure a freight for her and purchase and put on board of her five hundred bales of cotton on the owners' account "for the payment of all shipments on owner's account, thy bills on T. & Son, of Portland," or me, sixty days' sight, shall meet due honor." On 13 February, B again wrote to L. reiterating the former request and enclosing a letter from T. & Son to L. containing their instructions to L. with whom they afterwards continued to correspond, adding, "thy bills on me for their account, for cotton they order shipped by the Mac shall meet with due honor." On 24 July, 1806, again wrote L. on the same subject, saying, "the owners wish her loaded on their own account, for the payment of which thy bills on me shall meet with due honor at sixty days' sight. L. proceeded to purchase and ship the cotton, and drew several bills on B. which were paid. He afterwards, drew two bills on T. & Son payable in New York, which were protested for nonpayment, they having in the meantime failed, and about two years afterwards, drew bills on B. for the balance due, including the two protested bills, damages, and interest.

Held that the letters of 13 February and 24 July contained no revocation of the undertaking in the letter of the 9 January; that although the bills on T. & Son were not drawn according to B's assumption, this could only affect the right of L. to recover the damages paid by him on the return of the bills, but that he had still a right to recover on the original guarantee of the debt.

It was also held that L., by making his election to draw upon T. & Son, in the first instance, did not thereby preclude himself from resorting to B., whose undertaking was in effect a promise to furnish the funds necessary to carry into execution the adventure. Also held that L. had a right to recover from B. the commissions, disbursements, and other charges of the transaction.

Where a general authority is given to draw hills from a certain place on account of advances there made, the undertaking is to replace the money at that place. In this case, therefore, the legal interest at New Orleans was allowed.

An agreement of the parties entered on the transcript, stating the amount of damages to be adjudged to one of the parties upon several alternatives (the verdict stating no alternative) not regarded by this Court as a part of the record brought up by the writ of error, but a venire de novo awarded to have the damages assessed by a jury in the court below.

Page 16 U. S. 102

This was an action of assumpsit brought in the Circuit Court of New York by the plaintiff in error against the defendant to recover the amount of 500 bales of cotton shipped by the plaintiff from New Orleans

Page 16 U. S. 103

on account of John Taber & Son, of Portland, in the District of Maine, upon the alleged promise of the defendant to pay for the same with the incidental disbursements and expenses.

At the trial, a verdict was taken and judgment rendered thereon for the defendant, and the cause was brought up to this Court by writ of error.

On the 19th of December, 1805, the defendant, a merchant in New York, wrote a letter to the plaintiff, a merchant in New Orleans, containing, among other things, the following passage:

"I am loading the ship Mac for Jamaica; she belongs to my friends, John Taber & Son, Portland, who I expect will order her from thence to N. Orleans, to thy address for a freight, and in that case, if thee makes any shipments for my account to the port where she may be bound, give her the preference of the freight."

This letter was received by the plaintiff on 6 February, 1806.

On 9 January, 1806, the defendant wrote to the plaintiff the following letter:

"New York, 1st month, 9th, 1806"

"PAUL LANUSSE, ESQ."

"Esteemed Friend -- This will be handed you by Captain Robert Swaine, of the Portland ship Mac, which vessel is bound from this to Jamaica and from thence to New Orleans in pursuit of freight; she will be to they address; she is a good ship, between three and four years old, has

Page 16 U. S. 104

an American register; is of an easy draft of water, although rather large; a freight for Liverpool will be preferred; if not to be had, for such other port as thee thinks proper, send her. If no freight offers for Europe, send her to this or some neighboring port with all the freight that can be had, which I have not any doubt will be sufficient to load her; if thee can get three-fourths as much for this port as for Europe, I should prefer it; if not, I should prefer a freight to Europe. Immediately after her arrival, I wish thee to commence loading her on owner's account, who wish thee to ship five hundred bales on their account, but do not wish to limit the quantity, a few bales more or less according as freight offers, and for the payment of all shipments on owner's account, thy bills on them, John Taber & Son, Portland, or me, at sixty days' sight, shall meet due honor; all shipments on owner's account, if the ship goes for Liverpool, address to Rathbone, Hughes, and Duncan; if for London, Thom as Mullet and Co.; if Bordeaux, to John Lewis Brown & Co.; if Nantes or Cherbourg, Preble, Spear & Co.; if Antwerp, J. Ridgway, Merting & Co.; if Amsterdam, Daniel Cromelin & Sons. Captain Swaine will take a sufficiency of specie from Jamaica for ship's disbursements; please write me often and keep me advised of the state of your market, &c. Of thy shipments by the Mac on owner's account let as much go on deck as can be safely secured, and have her dispatched from your port as soon as possible."

"Thy esteemed friend,"

"JACOB BARKER"

Page 16 U. S. 105

And on 26 January, 1806, the defendant wrote the plaintiff as follows:

"Since writing thee under date of the 9th instant, I have engaged for the ship Mac the freight of eight hundred bales of cotton from New Orleans to Liverpool, agreeably to the enclosed copy of charter party. I have therefore to request thy exertions in dispatching her for Liverpool, filling her up either on freight or owner's account, and particularly fill her deck and quarters on owner's account. Her owners wish large shipments of cotton made on their account, which, if bills can be negotiated on New York, I have informed them thee would make; I, however, am clearly of opinion that it will be more for their interest to have her filled up on freight; on this subject I shall write thee again more fully. Capt. Swain will take with him from Jamaica eight thousand Spanish for my private account, which I wish invested in cotton."

This letter was written on the same sheet of paper, and immediately following a duplicate of the preceding letter of 9 January, and was received by the plaintiff on 18 March, when he wrote an answer, saying,

"On my part, nothing shall be wanting to satisfy the contracting parties, when the ship arrives, and your instructions shall be strictly observed, conforming myself to the latter you gave, and in case of necessity, I think, it will be easy to place bills."

On 13 February, 1806, the defendant wrote to the plaintiff as follows:

"Enclosed, I hand thee a letter from the owners of ship Mac, to which I have only to add that thy bills

Page 16 U. S. 106

on me for their account for the cotton they order, shipped by the Mac, shall meet due honor."

On 29 August, 1806, the plaintiff wrote the defendant:

"A few days ago I was favored with a few lines from Messrs. John Taber & Son, importing that they wrote to you, to Capt. Swaine, and me such directions as you might think proper, but I have not as yet been favored with any of yours. The Mac remains precisely in the same situation. $4,250 demurrage have been paid on her account, and I only wait for further information from you to act in case demurrage is refused."

On 24 July, 1806, the defendant wrote the plaintiff as follows:

"Relative to the unfortunate situation of the Mac, I have to observe that if she remains at your port idle, Fontaine Maury or his agent there must pay the demurrage every day, or the master must protest and end the charter; as long as the demurrage is paid agreeable to charter party, the ship must wait; as soon as that is not done, the captain or owners' agent can end the voyage by protesting, and entitle the owners to recover their full freight, so that thee had better take the eight hundred bales, on account of Fontaine Maury at a low rate than to subject him to such a heavy loss; thee will on receipt of this be pleased to receive the demurrage daily or end the charter and dispatch her for Liverpool on owners' account, taking all the freight that offers, and fill her up with as much cotton as possible [not less than five hundred bales], logwood and staves, as it will not answer to keep so valuable a ship there any longer without earning something

Page 16 U. S. 107

for her owners. Although I say fill her up with cotton, logwood, and staves on owners' account, thee will please understand that I should prefer her being dispatched agreeable to charter party, if that can be done, I prefer her taking freight for Liverpool, excepting about five hundred bales, the owners wish shipped on their account; yet rather than have her there idle, the owners wish her loaded on their own account, for the payment of which, thy bills on me shall meet due honor at 60 days' sight, which I presume thee can easily negotiate."

On 26 September, 1806, the plaintiff wrote the defendant:

"Since my respectful last 29 August, 1 am favored with your much esteemed of 24 July, the contents of which I have duly noticed."

"I have to inform you of the disaster which has befallen the Mac. On the night of the 16th and 17th inst., we experienced a most violent gale, which has done great injury to the shipping, and drove the Mac from her moorings to a considerable distance from the town. . . . Nor can I flatter you of procuring either freight for her or accomplishing your order before December. . . ."

On 6 September, 1806, the defendant wrote the plaintiff as follows:

"Since I last had this pleasure, ordering a protest against the charterers of the Mac, and that vessel dispatched on owners' account for Liverpool with staves, logwood, and cotton, I have not received any of thy acceptable communications. I now confirm that order

Page 16 U. S. 108

and request, if a full cargo be not engaged for the Mac, on receipt of this that you ship two hundred bales of cotton for my account to the address of Martin Hope & Thornley, and thy bills on me, at 60 days' sight, shall meet due honor for the same. On receipt of this, lose no time in purchasing the two hundred bales, and what may be yet wanted for the ship on owners' account, as a very considerable rise has taken place in that article at Liverpool; therefore thee will not lose any time in making the purchase."

On 10 October, 1806, the defendant wrote the plaintiff:

"By thy letter of 29 August to John Taber & Son, I observe thee had an idea of sending the Mac here, if a freight did not soon offer, which I think thee would not (on reflection) do if a freight from this port did not offer, as she had much better remain at New Orleans than be sent here in ballast. Therefore request, if she is not dispatched agreeable to charter party, that she remain at your port until a freight can be obtained for her, with what thee can ship on owner's account. They wish at least five hundred bales of cotton. I hope thee did not ship logwood, as I find that article will not pay any freight; therefore, if thee has not made a shipment of that article, please omit it. Thee must, of course, keep the ship as long as demurrage is paid."

On 26 November, 1806, the defendant wrote the plaintiff:

Page 16 U. S. 109

"I wish the Mac got off as soon as possible and prepared for a voyage, when I wish five hundred bales of cotton shipped, on account of her owners, for Liverpool, and the ship filled up with freight goods, even at a low rate. If freight should be scarce, and thee can purchase good flour at about four and a half per barrel, thee will please to ship from five hundred to one thousand barrels on account of the owners of the Mac, and on thy making any purchase for those objects, inform Rathbone, Hughes & Duncan, Liverpool, by letter duplicate and triplicate, requesting them to have the full amount of thy shipment on owners' account insured, stating particularly when thee expects the ship to leave New Orleans, &c. If cotton falls to twenty cents, pleas ship five hundred bales of cotton for my account, by the Mac, consigned to Martin Hope & Thornley, drawing on me at sixty days for the same. I do not wish a bale shipped at a higher price than twenty cents, and I hope thee will engage the freight as low as 1 1/2d. My only reason for ordering it in the Mac is to assist her owners; therefore, if a full charter offers for her, or if anything should prevent her going, thee will ship five hundred bales by some other good vessel, or vessels."

On 29 December, 1806, the defendant wrote the plaintiff:

"I am favored with thy letter of the 7th, by which I am pleased to observe the Mac was off, and likely to be dispatched for Liverpool. Her owners are desirous that she be dispatched for that place without delay, as I mentioned to thee in my last letter on the subject

Page 16 U. S. 110

of the Mac's business. If thee has contracted for the cotton, or any part thereof, that I ordered, let all that has been contracted for be shipped according to my last request, but do not purchase a bale for my account after this letter reaches thee above sixteen cents, as that article has become very dull at Liverpool, and likely to be low in consequence of the success of the French army on the continent. If thee can purchase at or under sixteen cents before May, thee may purchase and ship such part of the five hundred bales as has not been purchased before this letter reaches thee."

On 22 January, 1807, the plaintiff wrote the defendant as follows:

"I have now commenced the purchase of cotton for account of Messrs. John Taber & Son, and have paid hitherto twenty-two cents cash, at which price seventy two bales were ready to be shipped, as I expect to find an opportunity of placing my bills upon you. I shall complete the purchase of 500 bales, which will be necessary, in order to get a full freight. . . . I have now to inform you that I have drawn on you, under date of 15 January, for $1,800. Say $1,800, payable sixty days after sight, to the order of Mr. A. Brasier in Philadelphia, which draft goes on account of the 72 bales of cotton already purchased, and request you to honor the same."

And on the same day he wrote the defendant:

"The present merely serves to inform you that I have this day valued upon you. "

Page 16 U. S. 111

"$1,370 Order Joseph Thebaud"

"607.23 Declaire & Count"

"1,100 Stephen Zacharie"

"$3 ,077.23 sixty days after sight, and refer to my letter of this day"

On 13 February, 1807, he wrote the defendant:

"I have engaged 150 bales for account of Messrs. John Taber & Son, at Market price, which I expect in town in a few days, when I shall without delay ship the same on board the Mac, making the 220 bales in all. This commencement, I hope will encourage shippers to give us some freight; at all events I shall keep you duly advised of my proceedings. Under date of the 6th inst., I took the liberty of valuing upon you $301.22 1-2 sixty days after sight, to the order of Jacob D. Stagg; on the 12th inst., $673 to the order of Samuel Lord, and shall continue drawing as opportunity offers."

On the 16th of the same month he wrote the defendant:

"The present merely serves to inform you that I have this day valued upon you $600. Say $600 to the order of Benjamin Labarte, sixty days after sight, and request you to honor the same, and place to account of J.T. & S."

On 20 February, 1807, the defendant wrote the plaintiff:

Page 16 U. S. 112

"I am in daily expectation of hearing of the Mac's progressing for Liverpool. Before this reaches thee, I hope she will have sailed; if not, please lose no time in dispatching her. That thee may be fully acquainted with the wishes of her owners, I annex a copy of the last letter I have received from them, and request thee to comply with their wishes in every particular."

The copy of the letter from John Taber & Son, referred to in this letter, is as follows:

"Portland 2d mo. 9, 1807"

"JACOB BARKER,"

"By last mail we received thy favor of the 2d inst. enclosing one from Captain Swaine to thee. We notice thy proposition for us to give liberty for the Mac to take freight for any port in Europe, but as we have got her and her freight insured in Liverpool, at and from New Orleans to that port, we wish to have her go there, even if we load owners' account. We are well satisfied that Lanusse hath not yet loaded her, as we have no doubt cotton will be much lower in a short time. And as we apprehend that shippers of cotton will now turn their attention to other parts of Europe, we think the probability is that cotton will be in demand in Liverpool by the time the Mac will arrive there, we likewise think it will answer to ship good flour, and probably some good staves can be purchased; we had rather have her loaded on our own account with those three articles than to take freight for any other port, but we think there can be no doubt, but that when she begins to loan on owners' account, that some considerable

Page 16 U. S. 113

freight can be obtained. We really wish thee to write Lanusse to dispatch her, with liberty to take two thousand barrels of good fresh flour, if freight does not offer sufficient with the five hundred bales of cotton before ordered, to load her without delay, as we have no doubt good flour will answer, and we cannot think of her being longer detained at New Orleans."

"We remain, thy assured friends."

"JOHN TABER & SON"

And on 3 March, 1807, the plaintiff wrote the defendant:

"The present merely serves to inform you that I have this day valued upon you $10,000. Say $10,000, payable sixty days after sight, to the order of Mr. Thomas Elmes, and request you to honor the same, and place to account of J.T. & S."

On 6 March, 1807, he again wrote the defendant:

"I refer to my respectful last of 13th, 16th 24th ult. and 3d inst., the contents of which I confirm. On the 16th, I valued upon you for $600, and on the 3d inst. for $10,000, making in all the sum of $16,351.03 3/4, on account of the shipment per Mac, for account of Messrs. John Taber & Son. I have already bought 72 bales at .22, 107 do. at .20 3/4, 175 do. at .20 1/2, together 354 bales, and 30m. staves, amounting to about $22,000. There remains 146 bales more to be purchased, which I hope to get; the total amount, with charges and commission,

Page 16 U. S. 114

will be about $34,000 -- for which sum I shall order Messrs. Rathbone, Hughes & Duncan, to get insurance effected. I shall continue to draw on you as occasion presents."

On 11 March, 1807, he wrote the defendant, informing him that he had drawn on the defendant to the order of Mr. F. Depau, for $6,000, and to the order of Mr. J. P. Ponton for $691.50.

On 15 April, 1807, the defendant wrote the plaintiff:

"I have this moment received the unpleasant information of the failure of John Taber & Son, therefore beg the favor of thy taking every precaution to secure my claim on them for the payment of the cotton thee has shipped for their account by the Mac. If that ship has not got clear of your river, take up the bills of lading and fill up new bills, consigning the cotton to my order, forwarding me several of the bills, and instruct Captain Swaine to hold the cotton until he hears from me; and if part of the old set have gone on, let them go, but take a new set, and make all the freight money payable to my order, and if she has got clear of the river, make an arrangement with the shippers of the cotton to pay thee the freight money, and give them a receipt for it, forwarding that receipt to Liverpool, but for the consignee to keep as a secret that the freight money has been paid until they get all the freight goods."

And on 16 April, 1807, the defendant again wrote the plaintiff:

Page 16 U. S. 115

"I have taken the best counsel, and find the goods per ship Mac can be stopped for thy account in transitu, and have therefore taken all the steps in my power to have that object effected, and shall succeed so far as to keep the property at thy disposal until thy power reaches Martin Hope & Thornley, which will enable them to hold the property for thy use; therefore send the power by the packet, and send duplicates and triplicates by other vessels, and several copies by mail and packet to me to be forwarded; also draw on Rathbone, Hughes & Duncan, for the whole amount of shipment, ordering Martin Hope & Thornley, to pay them

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