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Rabaud v. D'Wolf.

proof in support of it, in relation to the letter of advice from Belknap to his co-partners, apprizing them of his having authorized the drafts of George D'Wolf. The declaration al. leges, “ that in consideration that the plaintiffs would author. ize George D'Wolf to draw upon them for one hundred thousand francs, the defendant undertook and promised," &c. But that the written authority shown in evidence, was in blank as to the sum to be drawn, and that in this consisted the variance.

This letter being in blank cannot be set up as a variance between the allegation and the proof. The declaration does not state that the authority was in writing, or refer in any way to the letter in question; and George D'Wolf swears, that he was authorized to draw on the plaintiffs for one hundred thousand francs. That in pursuance of such authority, he did draw upon them for that sum, and his bills were accepted and paid. The drafts which accompanied the letter of advice showed the amount, and the bills having been paid, the blank is of no importance in the present action.

4. The next inquiry is, whether any vessel was designated to receive the sugars according to the terms of the agreement. By the contract, the sugars were to be shipped on board such vessel as George D'Wolf should direct. He having become insolvent, wrote a letter to Belknap, authorizing him to make arrangement with the defendant on this subject, and to de. signate the vessel, which he accordingly did, and gave notice thereof to the defendant, and demanded the shipment of the sugars. This was amply sufficient. The authority reserved to Geòrge D'Wolf, to direct in what vessel the shipment should be made, was for his benefit, which he might waive. He was not bound personally to designate such vessel; he might do this by his agent, and the authority given to Belknap was constituting him such agent for that purpose ; and

Rabaud v. D'Wolf.

the act of Belknap, in this respect, was, in judgment of law, the act of George D'Wolf. And it is in proof, that the vessel designated was in every respect fitted for the purpose. Nor was any objection made by the defendant at the time on this ground; but he declined making the shipment, because George D'Wolf had not furnished him with funds to purchase the sugars; and the objection that the vessel was not designated by George D'Wolf cannot now be set up. The act of his agent was his act, and the evidence therefore fully supports the contract, as laid in the declaration.

5. The only remaining question is, as to the rule by which the damages are to be ascertained. Upon this subject much of the evidence which has been introduced on the part of the plaintiffs, and the various estimates and calculations which have been submitted to you, may be entirely laid aside, according to the view which I have taken of this question. I concur with the defendant's counsel on this point, that the measure of damages must be the value of the sugars in NewYork, at the time of the breach of the contract by the defendant, in refusing to make the shipment, according to his contract.

If this was a question between George D'Wolf and the plaintiffs, for settling the amount of the proceeds of the sugars had they been shipped, it might have required the application of different principles. But the breach of contract, on the part of the defendant, consists in not making the shipment and consignment according to his undertaking. He did not undertake to deliver the sugars to the plaintiffs at Marseilles. He had no concern with the transportation or the expenses incident thereto. If he had shipped the sugars on board the vessel designated, consigned to the plaintiffs, his contract would have been complied with. The plaintiffs are accordingly entitled to recover the value of the sugars in NewCatlett and Keith v. Pacific Insurance Company,

York, at the time when the defendant was bound by his contract to make the shipment. This amount you will ascertain from the evidence that has been offered you on that subject.

Verdict for the plaintiffs for nineteen thousand nine hundred and fifty dollars eighty-five cents.

CHARLES I. CATLETT. AND JAMES KEITH, JR. v. Tue PACIFIC

INSURANCE COMPANY OF NEW-YORK.

The averment of the citizenship of the parties, to give jurisdiction to a Circuit

Court, is a necessary averment, and must be proved under the general issue. It is not necessary that a citizen, removing from a territory of the United

States, or a state, into another state, should acquire all the rights of a citizen of the state into which he removes, by the laws of such state. It is sufficient if he acquire a domicil there. Yet the declaration must aver that he is a citizen of the state: not sufficient to aver that he is a resident. Difficulty

in understanding the term citizen, as used in the constitution. If one make such removal with the avowed object of acquiring a right to sue

in the Circuit Courts, bat with the intention of a permanent residence, and not to return, it is not a fraud upon the law. The register of a vessel is the only document which need be on board during

a period of universal peace, in compliance with the warranty of national

character. It is the original register which is required by law to be transmitted, on the

loss of a vessel, to the Register of the Treasury to be cancelled: And as it is the practice not to destroy the register after it is cancelled, it is a document required by law to be deposited in the Register's office; and a duly

certified copy is legal evidence. The record of condemnation of a vessel, in a Court of Vice-Admiralty, is not

evidence per se. The scal does not prove itself, but must be proved by a witness who knows it; or the handwriting of the judge or clerk must be Catlett and Keith v. Pacific lusurance Company.

proved; or that it is an examined copy. The certificate of the American Consul is not sufficient to authenticate it. The testimony of the captain, that a survey was held on the vessel, and that

the surveyors reported that she could not be repaired but at too great an expense, and that she was thereupon condemned on his application'; although not evidence of these proceedings, was held to be evidence that he coincid

ed with the surveyors in opinion. An averment that the plaintiff's have an entire interest in themselves in the

subject insured, cannot be supported by evidence of a joint interest with

others. Nor can an averment of a joint interest with others, be supported by proof of

a sole interest. The plaintiffs purchased, separately, each a moiety of the cargo, which was spécie, and instructed their agent to get it insured on their joint account: The agent effected the insurance, but the policy was expressed to be on account of owners : Afterwards, one of the plaintiff's transferred half his share to the person who was to go in the vessel as supercargo. Held, that the term owners," was descriptive of the persons intended to be insured, and referring to matters out of the policy, was open to explanation by ex.

trinsic proof. As the underwriters understood, when they made the insurance, that it was on

account of the plaintiffs only, it was held, that they could not set up that

the supercargo became an owner before the commencement of the risk. The bill of lading, on its face, and the other papers, showed that the interest

of the three owners, after shipment, was joint: But there was an endorsement on the bill of lading, stating that one half the cargo was the property of one of the plaintiffs, and the other half, the property of the other plaintiff and the supercargo : Held,that the endorsement was intended only to show the extent of each owner's interest; and that the separate purchase of the cargo, together with the endorsement, did not prove that their interests were

several. Before the end of the voyage, it was broken up, and the insured abandoned on

learning the fact. The instructions to the master and supercargo, showed that the rights and duties of the latter, as supercargo, were not to commence until the end of the voyage. On the loss of the voyage, the master delivered the specie to the agent of the supercargo, and it was invested in cotton. Held, that as the supercargo was not interested in the policy, his acts did not bind the other joint owners; and that his capacity of supercargo suspended whatever powers he might have had as a partner, and that the investment by him of the specie, was as agent for the underwriters, and did not constitute an act of ownership, so as to waive the abandonment.

Catlett and Keith c. Pacific Insurance Company.

This was an action of assumpsit, on a policy of insurance, on the cargo of the brig Sphinx. The questions decided arose on a motion for a nonsuit.

The policy, which was in the common form, and dated on the 2d of February, 1818, purported to be effected by Le Roy, Bayard, & Co., on account of the owners, upon all kinds of lawful goods and merchandises, laden or to be laden, on board the good American brig called the Sphinx, at and from Alexandria, Columbia, to Canton, and at and from thence back to Alexandria; beginning the adventure on said goods from and immediately following the loading thereof on board the said vessel at Alexandria, &c. The amount insured was 30,000 dollars.

The declaration contained two special counts, the first of which, after setting out the policy, averred an undertaking of the company to insure the plaintiffs ; and that 30,000 Spanish milled dollars were shipped at Alexandria on board the Sphinx; and an interest in the plaintiffs : That said vessel, on the 31st of March, 1818, sailed on her said voyage, in the course of which, she was, with the said goods, wholly lost.

The averment of loss in the second count, was as follows: That the vessel having been disabled by the perils of the seas, was obliged to seek a port; and on the 31st of July, 1818, having reached the Isle of France, a survey was held upon her, and the surveyors reported that she could not be repaired but at a cost of 20,000 dollars; whereupon the vessel was sold by a decree of the Court of Vice-Admiralty, and the voyage broken up, and the plaintiffs abandoned to the defendants the part of the cargo insured by them.

The Court having decided that the preliminary proof was

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