4 U.S. 155 (1798)

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U.S. Supreme Court

KEPPELE v. CARR, 4 U.S. 155 (1798)

4 U.S. 155 (Dall.)

Keppele et al.
Carr et al.

Carr et al.
Keppele et al.

Supreme Court of Pennsylvania.

December Term, 1798

THE case was, briefly, this: Kepple and Zantzinger, Philadelphia merchants, being indebted to Carr and Sons, English merchants, for goods sold and delivered, bought a bill of exchange from John Swanwick for the amount, drawn in their favour and indorsed by them; delivered the bill to one of the partners of Carr and Sons, who was in Philadelphia, but who expressly refused to remit it, on the account and risque of his house; and informed Carr and Sons by letters, dated, respectively, the 20th of May, and 20th of June 1796, 'that the bill, when paid, will be in full for merchandize (high charged) to our G. Keppele, by your invoice dated the 31st of March 1795.' The bill was duly presented and protested for non- acceptance, on the 27th of June, and for non-payment, on the 29th of August 1796; and, on its being returned with the protest, notice was reqularly given to the drawer and indorsers. Keppele and Zantzinger then ( about the 5th of November 1796) tendered to Carr the principal and interest of the bill, and demanded restitution of it, with the protest; but Carr refused to accept the tender, or to deliver up the bill; saying 'that he would settle the bill himself with Swanwick:' whereupon Zantzinger declared, 'We shall consider the bill at your risque, from this day.' Carr then entered into an arrangement with Swanwick, took his promissory note for principal, damages, and charges, and delivered to him the bill and protest. Before the note became due,

Page 4 U.S. 155, 156

Swanwick had failed; and Carr demanded payment from Keppele and Zantzinger, on the footing of the original account for goods sold. On the other hand, Keppele and Zantzinger demanded from Carr, the twenty per cent. damages, included in Swanwick's note, with interest from the date of the note. And, upon these adverse claims, the present actions were instituted, and tried at the same time.

At the trial of the cause, three grounds were taken in favour of Carr and Sons: 1st. That the language of the letters, written by Keppele and Zantzinger, was not meant to retain an interest in the bill of exchange; but to preserve, unimpaired, the original contract, if the bill was not honoured; or, at most, to protect them, as indorsers, from being liable for damages; but not to entitle them to receive any. Carr and Sons had a complete power over the bill; they might have cancelled it after acceptance, for the acceptor's note; or they might have released it upon any, or no consideration to the drawer's agent in England; the only effect of which would be, to ender the bill payment of the preceding debt, as in Watts v. Willing, 2 Dall. Rep. 100. And Chapman v. Steinmetz, 1 Dall. Rep. 261. differs from this case; because the suit was there against the drawer of the bill, who was, also, the original debtor, expressly stipulating, that he should not be liable for damages; and here Carr and Sons do not sue Keppele and Zantzinger on the bill, for damages. 2d. That whatever might be the operation of the original contract, the claim of Keppele and Zantzinger to damages was extinguished, when Zantzinger declared, that 'the bill would be considered for the future, at the risque of Carr and Sons;' changing essentially the relative responsibility of the parties. 3d. That the suit brought by Keppele and Zantzinger, for the damages, was a disaffirmance of any implied contract, that the bill of exchange was paid, or received, in satisfaction of the precedent debt; and, consequently, Carr and Sons are entitled to recover upon the old account, whatever may be their responsibility for the principal, as well as the damages, of the bill. In that respect, too, Keppele and Zantzinger have chosen to regard them as agents; and can only be entitled to recover, what Carr and Sons received, to wit, Swanwick's promissory note.

In favour of Keppele and Zantzinger, it was urged, 1st. That the remittance of the bill of exchange was, by express stipulation, upon their account, and at their risque; and the terms of the remittance came, pointedly, within the principle of Watts v. Willing, and Chapman v. Steinmetz. Till the bill was paid in England; or, in case of a protest, till it was recovered from the drawer here, it was, exclusively, at the risque of Keppele and Zantzinger; and they, who were exposed to the whole risque were entitled, in law and equity, to the whole benefit of an indemnity. [4 U.S. 155, 157]

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