fendants said that,- -"After writing you on the 3d inst., we were induced, by the continued fine appearance of the sea- son, to sell your flour by the 'Nicholas Biddle' at 21s., as per note above; and this we now regret, as on the 11th or 12th inst., a great change took place in the weather, and the potato crop was completely blighted." id.
The flour, per the "Georgianna," being of the same quality, was sold at later periods, and at prices which would have made the flour, per the "N. Biddle,' produce, with interest to the day of trial, $14,530,29 more than the plain- tiff's realized from it. In an action to recover this sum as damages, on the grounds that such a loss had been sus- tained by reason of the defendants dis- obeying the orders given to them, and by reason of their negligent perfor- mance of their duty, as such factors and agents, it was held, id.
22. 1.-In determining the question, whe- ther the defendants violated their in- structions, in selling at the time they did, the letters of the 25th and 27th of June are the only letters to be consi- dered, to ascertain the precise instruc- tions under which the defendants were then acting, as they had then received no others which gave any. id.
23. 2. The letter of the 27th of June is not fairly susceptible of two interpreta- tions, and it is the duty of the Court to construe it, and declare its meaning. id.
24. 3.-As 22s., in bond, could not be obtained, on arrival of the flour, it was the duty of the defendants to withhold the flour from market until the stock in bond, on the passage of the Corn Law, had been reduced by consumption, &c. If it was sold before that, it was sold before the defendants were authorized to sell, and they are liable for the con- sequences of that act. id.
25. 4.-It was the right and duty of the defendants, after the stock, then in bond, had been introduced into the market, and had been reduced by con- sumption, &c., to determine, in the ex- ercise of good faith, and of proper care and diligence, whether, and when, the Corn Law had produced its results, and also to determine, thereupon, when their duty and the interests of the plaintiffs
28. 7.-Under the letter of the 31st of July, and received on the 12th of Au- gust, 1846, the defendants were bound to exercise good faith, and reasonable care and diligence-such care and dili- gence as a consignee, of ordinary care and prudence, not coerced by any ne- cessity to sell, and acting on his own account, would have exercised under the same circumstances. Whether they exercised such care and diligence, was a question of fact, to be determined by the jury. If they failed to exercise it, in selling when they did, they are lia- ble. id..
29. 8.-To ascertain the damages which the defendants are liable to pay, if lia- ble at all, the jury must, upon a consi- deration of all the evidence bearing upon the questions, at what time the market prices began to advance, what continued to be the tendency of prices, and what must have been the views of men of prudence, having such informa tion as the defendants had, and acting with reasonable care and diligence, as to the time when this flour might have been sold, without justly incurring the imputation of having acted without reasonable care and diligence, ascer tain that day, and then determine what price could have been obtained for it
at that time, in selling it in the usual mode, and in the exercise of proper care and diligence. The defendants should be charged with that price, and be credited with advances made and charges paid, and the further expenses that would have accrued, and interest on them, to the time when the price of the flour would have been realized by them. The balance, with interest to the time of the verdict, is the sum the plaintiffs are entitled to recover. id.
30. 9.-The jury having found, under a question specially submitted, that the defendants, in selling at the time they did, failed to exercise that care and diligence which prudent consignees, having the information which the de- fendants then had, and acting on their own account, would have exercised, it was also held, that the variance be- tween the fact found, and a declara- tion which, in addition to alleging a disobedience of orders, also averred that the defendants acted "carelessly, and negligently, and inattentively, sold prematurely, and for less than they could have obtained, if they had faith- fully performed their duties," was im- material, inasmuch as the act of April 11, 1849, (Laws of 1849, p. 705, § 2, Sub. 1) applied sections 169 to 176 of the Code, inclusive, to future proceed- ings in civil actions which were pend- ing when the Code took effect.
that, the walnuts in question, when they arrived and were tendered to the defendants, were not merchantable as French walnuts, and were then worth only two and one half cents per pound, and that the article known in the trade as French walnuts, in the condition in which they generally arrive in the New York market, was worth at the time of said arrival and tender, six and a half cents per pound, it was also held that, the defendants were under no ob- ligation, by reason of their said con- tract, to receive and pay for the wal- nuts so tendered to them by the plain- tiffs. id.
31. On the 7th of April, 1855, the plain- tiffs, (then being in expectation of re- ceiving a large quantity of French wal- BILLS nuts, by the ship, Helen E. Miller, which ship was, at that time, on her passage from Havre, in France, to the port of New York), contracted to sell to the defendants who agreed to buy, "twenty-five bales of French walnuts, at 7 cents per lb., to arrive per Helen E. Miller, less 3 per cent. cash." Cleu v. McPherson. 480
OF EXCHANGE AND PRO- MISSORY NOTES.
1. A promissory note was by its terms made payable to the makers' own or- der, but they omitted to endorse it. It was delivered by the makers, as a pre- mium note upon an open policy, to a Marine Insurance Company. That Com- pany was authorized "to negotiate pre- mium notes for the purpose of paying claims or otherwise, in the regular transaction of its business." They de- livered the note in suit, with others, to the plaintiffs, and had them discounted, and received the proceeds. A small amount of risks compared with the amount of the note had been taken and premiums earned. The note was to cover premiums to be earned. There was no evidence as to the application of the proceeds of the note, by the In-
6. G., on the application of N., agreed to discount a note made by S. & McF., for $1283 27, on being furnished with col- laterals, being told at the time by N. that he wished to procure the discount for a friend who was not named, the friend being S. & McF.; and the latter thereupon delivered to N., as such col- lateral, a note which they owned, for $2,000, made by R. and M.; and N. delivered it to G., as such collateral, telling him that as the $2,000 note first matured, "to collect it and credit it in our account," by our account meaning the account of a firm of which N. was a member; and thereupon G. procured the note of $1283 27 to be discounted at bank, on the security of the note for $2,000 left with such bank as collateral, and the $2,000 note was paid at maturity. Geffcken v. Slinger- land.
7. G. has no right, as against S. & McF., to use such moneys to take up another note made by N.'s firm, then running to maturity, and which he had endorsed and procured to be discounted for such firm. Such a use and application of the proceeds of the $2,000 note would be a fraud on S. & McF. G. knowing,
when he discounted the note for $1283 27, that N. was acting for a friend, knew that he was the agent of such friend, and that the $2,000 note was the property of the latter, and was fur- nished by him as security for the pay- ment of the note to be discounted, or, at all events, he knew enough to put him on inquiry. id.
The relative rights of G. and of S. & McF. are not affected by the fact that the latter paid at bank the $2000 note, pursuant to an arrangement between themselves and the makers of such note, by which the makers were to have a renewal for $1500 of its amount on payment of $500 in cash (the ba- lance of it) to S. & McF., which balance such makers so paid to S. & McF., and gave them a renewal note for $1500. Nor are such relative rights varied by the further fact, that S. & McF., before they paid the $2,000 note, were in- formed by N. "what had passed be- tween him and G. in relation to it," it not appearing that S. & McF. ever sanctioned or intended to sanction the application of the $2000 note to any other purpose than to pay or secure the note for $1283 27. id.
Held, further, that the payment of the $2000 note, and the receipt and use of its proceeds by G., operated, as be- tween him and S. & McF., as a pay- ment of the note of $1283 27, and made him their debtor for the differ- ence; and, therefore, G. could not re- cover of S. & McF. the amount of the note for $1283 27 (that being the note on which this suit is brought), but that the latter were entitled to a judgment against him for the difference between the amount of such two notes, with in- terest, the right to such excess being set up as a counter-claim, on a proper allegation of the facts in that behalf. id.
Vide EVIDENCE, 4, 5, 6, 16, 17, 18, 19, and FRAUDS, STATUTE OF, 1, 2.
A bond fide assignment of a clean bill of lading to a purchaser for value is equivalent to an unconditional delivery of the goods themselves, so far as to supersede and render unimportant any conditional contract between the origi-
nal owner, or the party making such consignment, and the consignee. Ward- well v. Patrick. 406
(§ 306, p. 329); (§ 397, p. 601); (§§ 113 and 162, p. 43); (§ 99, p. 406); (§ 169, p. 417); (§§ 390, 391, 392, p. 611); (§ 308, p. 618); (§ 121, p. 636); (S$ 382, 383, p. 659)-(Chap. 2, of TITLE 9, ante, p. 690).
1. A common carrier, in respect to the time of the delivery of goods received by him for transportation, when there is no express agreement, is bound only to use due diligence, and may excuse delay by showing that it was caused by some accident or misfortune occur- ring, without any fault on his part. Blackstock v. N. Y. & E. R. R. Co. 77
2. But this immunity does not extend to cases in which, although the carrier himself is free from fault, the delay has been caused by the negligence or mis- conduct of the agents or servants whom he employs. id.
3. The liability of a master, for a neglect of duty by his servant, exists indepen- dently of the question, whether any fault is imputable to himself; for the master, in assuming to perform a duty to third persons, assumes also the ha- zard of the competency and fidelity of the agents he employs.
This rule, which undoubtedly applies where the master is a natural person, applies even with greater force when the employer is a corporation. id.
4. The operations of corporations are ne- cessarily conducted by the instrumen- tality of agents, and to excuse them
5. In the case before the Court, the de- lay in the transportation upon the de- fendants' road, of the plaintiff's goods, by which they were rendered nearly worthless, was caused solely by the misconduct of nearly all the engineers, and other persons, in the employ of the Company-whose services, in conduct- ing the road, were indispensable, and who, without any justifiable cause, broke their contract with the Com- pany, and by a combined action, upon one and the same day, abandoned their employment.
6. Held, that although no want of pru- dence or foresight in not anticipating this event, and guarding against its consequences, could be attributed to the defendants, and although it was not in their power to procure, immedi- ately, the services of competent per- sons, to replace those by whom they were deserted, the law furnished no reasons for exempting them from a lia- bility to make good to the plaintiff the loss which he had sustained from the misconduct of those whom they had employed. A sudden combination and strike of engineers is an event that may occur upon every railroad, and the hazard of its occurrence must, in all cases, rest upon the employers, who alone have it in their power to secure, by proper contracts, an indemnity against its consequences.
7. A Court of Justice has no power to relieve Railroad Companies from the hazard to which, the nature of their business, and the vast extent, to which it involves the employment of agents, necessarily subjects them. If a single engineer, having charge of a train, by his sudden refusal to perform his duty, should produce an injurious delay, the liability of the Company employing him, would hardly be doubted, and certainly the rule of liability cannot be varied by the number of the agents or servants who at one time are guilty of the same misconduct.
« PreviousContinue » |