H. and others, merchants in Baltimore, consigned a vessel and
cargo to W. and others, merchants in Amsterdam, with instructions
to them respecting her ulterior destination which showed that on
the failure of getting a freight to Batavia or of selling the
vessel at a price limited, she was to proceed to St. Petersburg and
there take in a return cargo of Russian goods for the United
States, but with instructions to the master committing to him the
management of the ulterior voyage. No freight to Batavia could be
obtained, and the vessel could not be sold for the price limited at
Amsterdam, and W. and others purchased in Amsterdam, with the
concurrence of the master, a return cargo of Russian goods, partly
with the money of H. and others and partly with money advanced by
themselves. On the return of the vessel to Baltimore, H. and others
objected to the purchase of this cargo in Amsterdam as being
contrary to express orders, and gave notice to W. and others of
their determination to hold them responsible for all losses
sustained in consequence of this breach of instructions, but
received the goods and sold them. W. and others brought an
assumpsit against H. and others to recover from them the moneys
advanced. The declaration contained the three usual money
counts.
Held: 1st, that the plaintiffs had a demand in law
against the defendants which could be maintained in this form of
action; 2d, that whether the plaintiffs could or could not be made
responsible in any form of action which might be devised for the
possible loss resulting from the breaking up of the intended voyage
to St. Petersburg, the defendants were not entitled to a deduction
from the plaintiffs' demand for the amount of such loss.
This was an action of assumpsit brought in the Circuit Court of
Maryland by the plaintiffs, who were merchants of Amsterdam, to
recover from the defendants, merchants of Baltimore, a sum of money
advanced by the plaintiffs in Amsterdam for the
Page 19 U. S. 241
cargo of the
Henry Clay, a vessel belonging to the
defendants which had been consigned by them to the plaintiffs with
an outward cargo and with orders respecting her ulterior
destination, which showed that on the failure of getting a freight
to Batavia or of selling her at Amsterdam, she was to go to St.
Petersburg, and there take in a return cargo of Russian goods for
the United States. The plaintiffs purchased in Amsterdam, with the
concurrence of the master a return cargo for the
Henry
Clay, partly with the money of the defendants and partly with
money advanced by themselves. On her arrival at Baltimore, the
defendants objected to the purchase of this cargo in Amsterdam as
being contrary to express orders, and immediately gave notice to
the plaintiffs of their disapprobation of the transaction and of
their determination to hold them responsible for all losses
sustained in consequence of this departure from instructions. They,
however, received the cargo and sold it.
The declaration contained three counts: the first for money lent
and advanced to the defendants; the second for money laid out and
expended for their use; and the third for money received by them
for the use of the plaintiffs.
On the trial of the cause in the circuit court, the defendants
prayed the court to instruct the jury that upon the whole evidence,
which is spread on the record,
"The plaintiffs have not any demand in law against the
defendants which can be maintained in this action, but that if they
have, the defendants
Page 19 U. S. 242
are entitled to a deduction from the same of the amount of the
loss which the jury shall find the said defendants sustained by
reason of the alteration aforesaid in the destination to St.
Petersburg of the said ship and the loading her as aforesaid at
Amsterdam."
On this motion the judges were divided in opinion, and the
division certified to this Court.
The evidence principally consisted of two letters, dated 29
April, 1815, written by McKim, one of the defendants, addressed,
the one to the plaintiffs, the other to the master of the
Henry
Clay.
That to the plaintiffs was as follows:
"Gentlemen: The owners of the ship
Henry Clay having
appointed me the ship's husband for this voyage, and from the
introduction of our mutual friends, Robert Gilmor & Sons, I
have been directed by the owners to consign the ship to your house,
also that part of her cargo which I consider belongs to her owners
jointly, agreeable to the invoice, amounting to $1,363. 40."
"You will find that the owners of the ship have shipped tobacco
on their separate accounts; the proceeds are to be placed to the
credit of John McKim, Jr., to remain a fund for the purpose of
loading the ship if she should proceed to St. Petersburg. The
freight and primage, and also Captain Charles Gantt's bills, which
are now enclosed, drawn on you for the sum of 6,550 guilders, are
to constitute part of the funds for the loading of the ship."
"Our wish is, in the first place, if a good freight or charter
can be had for the ship to Batavia, that
Page 19 U. S. 243
she should proceed there in preference to any other place."
"And secondly, if the ship can be sold for 8,000 pounds
sterling, you will dispose of her rather than send her to St.
Petersburg."
The letter then proceeds to give such a description of the ship
as might enhance her value in the estimation of a purchaser, and
then adds
"If the
Henry Clay proceeds to St. Petersburg, we must
depend on your placing funds there to purchase a cargo of iron,
hemp, and other goods. If the funds we have placed in your hands
should fall short of loading her, Messrs. Gilmor & Sons have
written you to make us any advances that may be deficient.
Agreeable to the estimate, what we have ordered from St. Petersburg
will not exceed $45,000, and you may rest assured that any sum
advanced us will be remitted to you as soon as we know the
amount."
The letter to the master was in these words:
"Dear Sir: The ship
Henry Clay is given you in charge,
that you proceed with all possible dispatch for Amsterdam, and it
is recommended that you sail northabout at this fine season of the
year. The owners of the ship have the greatest confidence in your
good management, that you will take care that your disbursements in
every foreign port may be as moderate as possible, that you will
purchase every article yourself on the lowest terms that may be
required for the ship, that you will use the greatest economy in
all your expenditures. After your arrival at Amsterdam, your first
object is a
Page 19 U. S. 244
good charter for Batavia, and if what you know to be a good
charter is obtained, you will of course accept it in preference to
anything else."
"And if a good freight cannot be had to Batavia and the ship can
be sold for 8,000 pounds sterling, you have orders to sell her, and
we confidently expect that she will bring more, as she cost upwards
of 14,000 pounds sterling, and never made one voyage. I hope that
every exertion will be made to proceed to St. Petersburg
immediately, if you do not go to Batavia and the ship cannot be
sold; as the season is far advanced, no time must be lost. The same
industry must be used to get away from St. Petersburg, for fear
that you might be detained there all the winter. The owners must
also depend on your attention at St. Petersburg that the hemp is
good that you receive."
The letter then gives instructions respecting pilots, protests,
&c., and then adds
"Messrs. Willinks will of course endeavor to consign the ship to
a friend of theirs at St. Petersburg, but we have great confidence
in a house recommended by Mr. Cumberland D. Williams, Messrs. Meyer
and Buxner, and we could wish you to consign the ship to them. If
any freight should offer from St. Petersburg to Baltimore, of
course, you will accept of it, and if any goods for Philadelphia or
New York should be there, you can inform the shippers how easy they
may be sent,"
&c.
It was also proved, that no freight to Batavia could be obtained
and that the vessel could not be sold at the price limited.
Page 19 U. S. 251
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court,
and after stating the facts, proceeded as follows:
On the first branch of the question certified from the circuit
court no doubt can be entertained. The defendants having received
the cargo of the
Henry Clay and sold it, are accountable
for the proceeds although the cargo should be considered as the
property of the plaintiffs. Whether the defendants are liable for
the moneys actually advanced in Amsterdam or for the net amount of
sales in Baltimore, considering the goods as the property of the
plaintiffs, still they are liable for something, and of consequence
the action is sustainable.
Page 19 U. S. 252
In deciding on the second branch of the instructions which were
required, it becomes material to examine the orders which were
carried out by the
Henry Clay on her voyage from Baltimore
to Amsterdam, contained in the letters of 25 April, the one to the
plaintiffs, the other to the master.
It is admitted that no freight to Batavia could be obtained and
that the vessel could not be sold at the limited price;
consequently the only deviation from orders alleged by the
defendants is the purchase of the Russian goods for the return
cargo at Amsterdam instead of sending the
Henry Clay to
St. Petersburg.
That the orders of the defendants to send their ship to St.
Petersburg in the event which had occurred were positive and that
no authority was given to purchase her return cargo at Amsterdam
under any circumstances are too apparent for controversy. That this
purchase, thus made without authority, whether with or without the
consent and concurrence of the master, must have been made at the
risk of the plaintiffs is also too clear for argument. But the
liability of the plaintiffs for any loss which the defendants may
have sustained by the breaking up of the voyage to St. Petersburg
depends on the question whether the control of that voyage was
committed to them or to the master. In considering this question it
is proper to take into view all the instructions which were given
and to compare the two letters written by the defendants with each
other.
In the commencement of the letter written by
Page 19 U. S. 253
Mr. McKim on the part of the defendants, he says, "I have been
directed by the owners to consign the ship to your house, also that
part of the cargo which I consider belongs to the owners
jointly."
Whether this consignment was limited to the transactions in
Amsterdam or extended to any subsequent voyage in which the
Henry Clay might be directed to engage depends on other
parts of the letter.
Mr. McKim then proceeds to direct that certain parts of the
outward cargo should "remain as a fund for the purpose of loading
the ship if she should proceed to St. Petersburg."
These orders are precise and explicit with respect to the funds
which are to remain in the hands of the plaintiffs for the purchase
of the cargo in St. Petersburg, but are silent respecting any
agency of the plaintiffs in making that purchase.
After communicating the desire of the defendants that a freight
should be obtained for Batavia, the letter proceeds to say, "And
secondly, if the ship can be sold for 8,000 pounds sterling, you
will dispose of her rather than send her to St. Petersburg."
This part of the letter may indicate that in some other part of
it might be found an express order to send the
Henry Clay
to St. Petersburg if the primary objects of the defendants should
be unattainable, but does not in itself amount to such express
order. The writer does not say, "we request you, if the vessel
cannot be sold, to send her to St. Petersburg," but, "you will
dispose of her rather than send her to St. Petersburg," as if there
were some authority
Page 19 U. S. 254
not communicated by these words to which they have allusion.
There is no such authority unless it be implied in the general
consignment of the vessel.
That consignment is completely satisfied by the agency which was
to be exercised in Amsterdam. If it was designed to extend it to
the eventual voyage to St. Petersburg, the Messrs. Willinks would
naturally expect to find some instructions respecting that voyage;
respecting the articles of which the cargo was to consist, and
their conduct in the purchase of them. But they could find no such
instructions. In a subsequent part of the letter, Mr. McKim states
the estimated value of the cargo he had ordered, and is explicit in
his request that they would advance the necessary funds for laying
it in should those placed in their hands be insufficient, but he is
entirely silent with respect to their having any other agency in
the voyage.
It was impossible for these gentlemen to read this letter
without at least doubting their power to interfere farther with
respect to the voyage to St. Petersburg than to advance the money
which might be required for the cargo to be purchased at that
place. The letter contains all the information and all the power
which was necessary for this purpose, but contains neither
information nor power for any other purpose.
It was natural for the Messrs. Willinks to require farther
information on this subject and to seek it from the master. He
could have no motive for withholding his letter of instructions
from them, and in that they would find that the management of
the
Page 19 U. S. 255
voyage was committed to him, and that the utmost confidence was
reposed in his intelligence and integrity. "I hope," says McKim,
"that every exertion will be made to proceed to St. Petersburg
immediately, if you do not go to Batavia and the ship cannot be
sold." These exertions were to be made by the master; he was to
proceed immediately to St. Petersburg, and as no reference is here
made to the Messrs. Willinks, the fair inference seems to be that
he was expected to proceed not in consequence of any orders he
should receive from them, but in consequence of the orders he had
received from the owners. "The same industry," he is told, "must be
used to get away from St. Petersburg." The letter then adds, "the
owners must also depend on your attention at St. Petersburg that
the hemp is good that you receive."
But the part of the letter which seems to be conclusive on this
point is that which relates to the consignment of the ship. "The
Messrs. Willinks," says the writer,
"will of course endeavor to consign the ship to a friend of
theirs at St. Petersburg, but we have great confidence in a house
recommended by Mr. Cumberland D. Williams, Messrs. Meyer &
Buxner, and we wish you to consign the ship to them."
The owners then did not suppose that they had empowered the
plaintiffs to order the ship to St. Petersburg. They did not
suppose that their original consignment of the
Henry Clay
to the Messrs. Willinks implied a control over her after the
transactions at Amsterdam should be terminated. Had
Page 19 U. S. 256
such a control existed, those gentlemen would not have consigned
her to one of their friends. But these words show conclusively,
that the defendants themselves directed the consignment of the ship
from Amsterdam to St. Petersburg, and in executing their orders,
the master is not merely directed to proceed without consulting the
Messrs. Willinks, he is directed to disregard their advice should
it be offered.
The plaintiffs could not compare this letter with that addressed
to themselves without perceiving that, with respect to the voyage
to St. Petersburg, every order was given directly to the master
without reference to them, farther than to show that their
interference with respect to the consignment of the ship was to be
disregarded, and that their agency was confined to advancing the
necessary funds for the purchase of the return cargo.
Both the master and the Messrs. Willinks appear to have acted on
this construction of their respective powers. The correspondence
between then contains no indication of an opinion in either that
the voyage to St. Petersburg depended on the orders of those
gentlemen. The master does not require their orders, but asks their
advice; they do not attempt to order, they only advise. This advice
may have been dictated by their best judgment or may have been
dictated by a view to personal interest; still it is mere advice,
and was both given and received as advice.
The conduct of the parties, then, is full proof of the opinion
each entertained of the authority of each, and the first letters
written after they had met in
Page 19 U. S. 257
Amsterdam show that free communications had taken place between
them. In a letter of 19 June, addressed to Captain Gantt, the
Messrs. Willinks say "We have not received yet the promised note of
the Russian goods that would be wanted for the
Henry
Clay." And in the captain's letter from the Helder of 18 June,
he says, "Herewith I annex you a copy of the order for Russian
produce, which the owners of the
Henry Clay wish to
constitute her return cargo."
These letters strengthen the probability that in the verbal
communications which were made at Amsterdam, the captain had stated
his orders relative to the voyage to St. Petersburg; at any rate
they show that the note for the cargo, which had not been
transmitted to the Messrs. Willinks, had been entrusted to him.
There is an expression in the last letter of the plaintiffs to the
defendants which seems to have some bearing on the question whether
the captain had communicated to them his letter of instructions.
They say
"You cannot expect, gentlemen, that we shall enter here into all
the details of this business, which has been conducted by us,
bona fide, with a view to your greatest benefit and
advantage, faithfully relying on your promises, and considering the
incomplete state of your instructions to us, that your captain was
furnished with more particular orders."
There is a vagueness in these expressions, arising probably from
the unskillfulness of the translation if they were not written in
our language, which
Page 19 U. S. 258
leaves it in some measure uncertain whether the plaintiffs meant
to assert that the captain was furnished with more particular
orders or that they inferred this fact from the incomplete state of
the instructions to themselves. If the case depended entirely on
the question, it might perhaps be proper to refer to the original;
but we do not think that the right of the defendants to the
deduction they claim from the demand depends entirely on the fact
that their orders to their captain were shown to the plaintiffs.
Their letter to the plaintiffs was at best equivocal, and any
evidence showing that the construction which the plaintiffs put on
that letter, conformed to the intention of the defendants, will
justify the plaintiffs, although that evidence was not in their
possession pending the transaction. The defendants cannot be
permitted to say
"It is true we did not intend to consign the
Henry Clay
to you further than was necessary to your agency in Amsterdam. We
did not intend to give you any control over her voyage to St.
Petersburg. We had committed that whole subject to our captain, and
had given him precise orders respecting it. We had even gone so far
as to direct him to disregard your consignment of the vessel,
should you endeavor to make one. But you did not see these orders,
and we will therefore make you responsible for not having
understood our letter to you as creating a duty which we did not
intend it should create."
This certainly cannot be permitted. As little can they be
permitted to charge the Messrs. Willinks, in consequence of the
Page 19 U. S. 259
advice they gave, with the profits which might possibly have
been made on the voyage to St. Petersburg. Although the orders were
broken with their advice, still they were broken by the master, to
whom their execution was confided, not by the Messrs. Willinks, to
whom their execution had not been confided.
Were it even possible that the Messrs. Willinks could be made
responsible in any form of action which could be devised for the
possible loss resulting from the breaking up of the voyage to St.
Petersburg, they cannot, we think, be made responsible in this.
Having loaded the
Henry Clay at Amsterdam clearly without
authority, the cargo was shipped at their risk. The defendants
might have refused it altogether. But they have sold it and
received the money. This creates an assumpsit to pay the money
received. This action, then, so far as respects the count for money
received by the defendants to the plaintiffs' use, is founded on
the transactions in Baltimore, and were it even possible, which we
are far from admitting, that the defendants could be allowed to
make a deduction of this supposed loss from the sum to be recovered
on the count for money laid out and expended to their use, provided
that count could be supported, yet they cannot be allowed to make
that deduction from the sum to be recovered on the count for money
had and received to the use of the plaintiffs for goods sold as the
goods of the plaintiffs.
Page 19 U. S. 260
CERTIFICATE. This cause came on to be heard on the transcript of
the record of the Circuit Court for the Fourth Circuit and District
of Maryland and on the question on which the judges of said court
were divided, and was argued by counsel. On consideration whereof,
this Court is of opinion that the plaintiffs have a demand in law
against the defendants, which can be maintained in the action now
depending in the circuit court, and that the defendants are not
entitled to a deduction from the same for the amount of any loss
which may have been sustained by them by reason of the alteration
in the destination of the ship
Henry Clay to St.
Petersburg and the loading her at Amsterdam. Which opinion is
directed to be certified to the circuit court.