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Executors of Clement v. Dickey.

EXECUTORS OF CLEMENT V. ROBERT DICKEY.

The owner of a vessel sevt her from New York, consigned to his correspondents ai Antwerp, with directions that they should despatch her to lodia, furnish. ing the master with a letter of credit, entitling him to draw on London for 5,000 pounds. The master was instructed if he should not have funds to purchase a cargo in India, to "extend his drawing," Being in want of funds, he drew, not on the house in London on whoin he had drawn the 5,000 pounds, but on the consignees at Antwerp, who had obtained the letter of credit, and to whom the vessel and cargo were to return. Held, that the bills were drawn without authority, and should have been drawn on the house in London.

This was an action of assumpsit, to recover of the defendant the amount of three bills of exchange, drawn by Francis Allyn, as master of the defendant's ship, Frances Henrietta, upon Parish, Agie, & Co. of Antwerp, and for goods sold and delivered by the plaintiffs' testator to Allyn, as such master.

The cause was tried at the September term, 1823, and now came before the Court on a case made by the plaintiffs.

At the trial it appeared on the part of the plaintiffs, that Allyn, in April, 18:8, sailed as master of the defendant's ship, Frances Henrietta, on a voyage from New York to Antwerp. The vessel was consigned to Parish, Agie, & Co. who were to decide after she arrived at Antwerp, whether the voyage should be continued round the Cape of Good Hope. Allyn was informed by his letter of instructions, that if such an extension of the voyage should be determined on, “ Parish, Agie, & Co. were to put on board the ship 55,000 or 60,000 Spanish dollars, and to furnish an effective letter of credit, to enable his passing bills from the port of lading, on Holland or London, to the amount of 5,000 pounds sterling; and that after leaving Antwerp, the care and management of the voyage would be reposed in him." He was also

Executors of Clement v. Dickey.

instructed by the same letter, “to proceed to the Isle of France, to procure on fit terms, a cargo chiefly of coffee and sugar, and if he should there discover that it would be more advantageous to go to Batavia, to proceed thither. If disappointed at Batavia, to proceed on to Manilla, or return by the Isle of France, or go to Bombay, or Calcutta. That wherever he might load, it was the defendant's desire, that it should eventually be a full cargo, and that if the specie and credit he carried should fall short, he could take on freight or extend his drawing, and if needful, give security by bill of lading on so much of the shipment as his extra credit paid for. To return to Europe when loaded,, proceeding to such port in the British Channel as Parish, Agie, & Co. might point out to receive their orders as to what port of discharge he should take the ship to, which would be Antwerp, or a port in Holland. That he should have the papers both outward and homeward made out for the defendant's account and risk, the outward cargo to be consigned to himself, and the homeward to Parish, Agie, & Co.” He was further directed, “ to acknowledge in writing to Parish, Agie, & Co. these orders of the defendant ; to inquire at Antwerp about the crops of grain, which would affect rice, and help him in his conclusion as to filling up with that article, particularly if his funds should be short.” He was also informed, “ that if this voyage to India should be undertaken, the defendant would, when he should hear that it was determined on, effect the necessary insurance, and would also again write, so that the letter would reach him before he left Antwerp.

In June the ship arrived at Antwerp, to Parish, Agie, & Co., who directed the master to proceed on the India voyage, and furnished him with 55,000 dollars in specie, and a letter of credit on Thomas Wilson & Co. for 5,000 pounds sterling. The inaster received no written instructions from Parish, Agie, & Co., but was verbally directed by them to proceed to

Executors of Clement v. Dickey.

the Indian Seas. The letter of credit contained a provision, that the proceeds of the drafts should be invested in goods and shipped on board the Frances Henrietta, to Holland, to Parish, Agie, & Co.

The ship not being able to enter at the Isle of France, went to Batavia, where she arrived the 2d of December, 1818. There had been lately a great rise in the markets, but the master, on the whole, concluded to purchase of Clement, the defendant's testator, 2,700 piculs of coffee at 30 dollars per picul, and 514 piculs of sugar at 9 dollars 50 cents per picul, at the specie value of a dollar, for which he paid him in the specie and proceeds of the drafts on Thomas Wilson & Co. These funds being inadequate to the payment of the amount purchased of Clement, Allyn showed him his letter of instructions, and probably also another letter he had received while at Antwerp, from the defendant, dated May 23d, 1818, advising him about prices, and informing him, that sugar at about five cents lb. English would be the best return cargo, and coffee at 21 or 22 cents without our duty, the next best. Allyn and Clement then entered into an agreement in writing, that Clement should receive from Allyn in payment of the residue of his purchase, bills of exchange drawn by Allyn on Parish, Agie, & Co. in favour of Clement, for 5,900 pounds sterling, payable in London, and that as security for such bills, Allyu should ship 700 piculs of coffee contained in 763 bags as per invoice and bill of lading, consigned to Clement, freight free, and that on the payment of the bills, the invoice and bill of lading should be endorsed and given up to Allyn's order. The bills were drawn at the rate of 5 shillings 2 pence the dollar, so as to allow Clement the difference in exchange. Allyn believed that this agreement was according to his instructions, and that he was authorized to draw as he did. Clement'was the master of an American ship then on a voyage to India, and the sugar and coffee sold to Allyn, had

Executors of Clement v. Dickey.

been purchased by Clement at Batavia, for his own ship, i he had changed his mind in consequence of intelligence ceived, and determined to go to Canton. Allyn wished, purchase no more of Clement's cargo than he had funds f , but Clement would not break it. In pursuance of th; agreement, Allyn drew the bills of exchange, and also de vered to Clement the bill of lading and invoice of the 7 3 bags coffee, which were shipped for account and risk of te defendant. Allyn informed Clement, that he had order : insurance upon that part of the cargo which exceeded hs funds, but it was understood that either he or Clement mig it order the insurance to be effected. They both sent orders for the insurance to London, where their correspondents made an arrangement that it should be insured on Clement's orde.:, and not on Allyn's. Nothing was said about insurance in the written agreement.

The Frances Henrietta arrived at Antwerp in October, 1819, consigned to Parish, Agie, & Co. The cargo was delivered to them; the 763 bags of coffee on account of Clement, and the residue on account of defendant.

It also appeared that Clement received the 55,000 Spanish dollars at par, although they were worih a premium of ten per cent. Government sales, however, were always made for dollars, and just before Allyn's arrival at Batavia government sales of coffee had been made at 22 dollars per picul, but the prices had risen very rapidly, and before he made the purchase of Clement, these sales had been made at 33 dollars. Allyn could not obtain at Batavia either a full or part freight. The price of rice was 2 dollars per picul. A picul is equal to 133 pounds.

Samuel Williams, who effected the insurance for Clement on the 763 bags coffee, paid a premium amounting with charges to 171 pounds 5 shillings and 6 pence. He also paid for Clement 40 pounds for law expenses, on account of the bills

Executors of Clement v. Dickey.

of exchange. The proceeds of the 763 bags amounting to 4,842 pounds, were also remitted to him for Clement's account, and Williams's charges amounted to about 50 pounds.

On the 29th September, 1819, Allyn, on his passage from Batavia to Antwerp, touched off Dover, and there received notice of the protest of the bills for non-acceptance, and while he was at Antwerp, a judgment was recovered against him at the suit of Clement on the bills. The protest for non-acceptance was dated the 13th of August, 1819, and of non-payment the 12th of November following. No other notice of the protest of the bills was ever received by either the defendant or Allyn, than the one received by the latter when he touched off Dover.

A deposition of Allyn, proving most of the facts of the case, to which was annexed a release to him from Clement, executed before the taking of the deposition, was read at the trial, but objected to by the defendant's counsel, on the ground of interest in the witness. .

The Court charged the jury, that Allyn was authorized to purchase the cargo of Clement, bụt not to draw bills in payment on Parish, Agie, & Co. and that the plaintiffs could not therefore recover damages on the bills or re-exchange. That in making up their verdict, they should allow the defendant credit, without any premium, for the monies paid the plaintiff, and the proceeds of the 700 piculs of coffee shipped as security, and find the balance of the price of the coffee for the plaintiffs. That the plaintiffs were not entitled to recover for the insurance and law charges.

The jury found a verdict for 6,818 dollars 21 cents.

H. D. SEDGWICK and R. SEDGWICK for the plaintiffs, contended,

That the bills were drawn by the master necessarily and bona fide ; and that the proper construction of the expression

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