Bell v. Cunningham

THIS was a writ of error from the circuit court of Massachusetts, prosecuted by the defendant in the circuit court.

The bill of exceptions to the opinion of the court below sets forth the pleadings and evidence, and exhibited the following case.

Cunningham and Loring, merchants of Boston, owners of the brig Halcyon, Skinner master, chartered by them to proceed from Havana to Leghorn with a cargo of sugars, directed Bell, De Yough & Co. merchants at that place and consignees of the brig, to purchase for them, to be shipped to Havana by the Halcyon on her return to that port, a quantity of marble tiles and wrapping paper. The letter containing these instructions was dated 15 September 1824, and stated: 'the whole amount of freight received at Leghorn will be about for thousand six hundred petsos: please invest two thousand two hundred in marble tiles; the balance, after paying disbursements, please invest in wrapping paper.' 'We have further engaged whatever may be necessary to fill the brig on half profits, on account of which seven hundred petsos are to be paid in Leghorn: after purchasing tiles and paying disbursements, you will invest the balance in paper.'

A duplicate of this letter was forwarded, to which the following postscript was added.

'P. S. We have further engaged whatever may be necessary to fill the brig, on half profits, on account of which seven hundred petsos are to be paid in Leghorn. After purchasing the tiles and paying disbursements, you will invest the balance in paper, as before mentioned. In previous orders the reams have been deficient in the proper number of sheets. We will thank you to pay particular attention to this, as well as having all the sheets entire.'

'This letter was received by the plaintiffs in error on the 13th of November 1824, and on the 9th of the December following they addressed a letter to Cunningham and Loring, in which they stated,

'The order you are pleased to give us for paper and marble tiles, to be paid for out of the freight of the Halcyon from Havana, to our consignment, has our particular attention.

'You have done very right to send on this order, as the wrapping paper cannot be got in readiness before the end of January, and therefore had it been delayed longer, could not have been in time for your brig Halcyon.

'We have contracted for five thousand reams, at as near your limits as possible, the article being just now in great demand. The tiles shall be collected also.'

On the 14th of January 1825 they wrote to Cunningham and Loring:

'The wrapping paper ordered by yours of the 15th of September, will be in readiness by the end of this month, and we shall have by that time, ready to ship, ten thousand marble tiles of twelve ounces, seven thousand six hundred of fourteen ounces, and six thousand two hundred of sixteen ounces, which will be about the investment you desire of the freight from the Halcyon.'

On the 21st of January 1825, the plaintiffs in error informed the defendants of the arrival of the Halcyon, and on the 21st of February they addressed them another letter, stating, 'The sample of wrapping paper sent us by Messrs Murdoch, Storcy & Co. we found much inferior to any made in this state, and have executed your order with a much better article, although the difference in price bears no proportion. As your account current after purchasing the paper, which captain Skinner told us was the better article for investment, gave only a small balance, we increased a little one quantity of peper, and sent no tiles.

'We now hand you bill of lading and invoice, amounting to P2801 18 for 473 packages of wrapping paper, shipped for your account and risk, on board your brig Halcyon, John Skinner master, which if found right, please to pass accordingly.

'Captain Skinner has been made aware of the superior quality of this parcel of paper, and that each ream is composed correctly of twenty quires of twenty-four and not sixteen sheets, as has been occasionally shipped; so that he will no doubt make an adequate price for it, because in realty the prices at which it is invoiced, are reduced, by this difference, below those mentioned in your order.'

The account current stated the investment of petsos 2801 18 in wrapping paper, and showed that the balance of the freight and other assets in the hands of the plaintiffs in error, belonging to Counningham and Loring, had been absorbed in the disbursements of the brig, &c.

The Halcyon proceeded to Havana, and there the paper shipped by the plaintiffs in error was sold, and the proceeds accounted for to Cunningham and Loring by their agents at that port. Had the marble tiles been shipped as ordered, there would have been a considerable profit in the transactions, instead of the heavy loss sustained on the sales of the paper.

Cunningham and Loring, on being advised of the non-compliance, by the plaintiffs in error, with their instructions of the 15th of September 1824, addressed the following letter to them:

Boston, April 18th, 1825.

MESSRS BELL, DE YOUGH, & Co.

Gentlemen: We have received your favour of February 21st. The following are extracts of our letter to you of 13th September, directing the investment of the freight per Halcyon. 'The whole amount of freight received at Leghorn will be about 4600 petsos: please invested 2200 in marble tiles; the balance, after paying disbursements, please invest in wrapping paper. We have further engaged whatever may be necessary to fill the brig, on half profits, on account of which 700 petsos are to be paid in Leghorn: after purchasing the tiles and paying disbursements, you will invest the balance in paper.'

We are exceedingly disappointed that such positive directions were not complied with: they were given for sufficient reasons, and without authority to alter them. You omitted to invest the 700 petsos on account of the freight of 150 boxes marked T, which we regret, as we wished the funds at Havana; with this you would have had 4240 petsos, which would have furnished the tiles, paid disbursements, and left 1393 petsos to be invested in paper.

Very respectfully,

CUNNINGHAM AND LORING.

One of the partners of the firm being in Boston in 1827, an action was instituted against the plaintiffs in error, in the court of common pleas of the county of Suffolk, for damages for the loss sustained by the plaintiffs, by the conduct of the defendants; and on their petition, the defendants in the suit being aliens, was removed to the circuit court of the United States for the district of Massachusetts.

On the trial of this cause in the circuit court, it was in evidence that the tiles ordered by the plaintiffs in the suit, could have been procured by the defendants, and at prices which would have produced a profit to the plaintiffs.

During the trial, exceptions were taken to the opinion of the court, by the defendants in the circuit court, which exceptions are stated in the opinion of this court, and a verdict and judgment having been rendered for the plaintiffs, the defendants prosecuted this writ of error.

The case was argued by Mr Ogden for the plaintiffs in error, and by Mr Webster for the defendants.

For the plaintiffs it was contended, that the circuit court had erred in leaving to the jury the construction of the correspondence between the plaintiffs in the court below and the defendants, of the 15th September 1824. The evidence being written, the construction of it was exclusively with the court. The course adopted by the defendants was in full accordance with the objects of the latter, as the paper could not be procured without previous orders, and they having been given, and the defendants bound to take the paper so ordered, they were necessarily without the funds required to purchase the tiles.

The plaintiffs below were bound to give the defendants notice of their intention to claim damages from them for non-compliance with instructions, and their neglect to do this, as well as their having received the proceeds of the paper, was a waiver of all their claims. The letter of the 18th April 1825 was not such a notice.

The rule adopted in the assessment of the damages was incorrect. The plaintiffs below were entitled to no more than the difference between the cost of the paper which had been shipped at Leghorn, and the price of tiles at that place. Cited, 1 Vez. Jun. 509.

Mr Webster, for the defendants in error, said that there were no questions of law in the case which presented any difficulty, and the facts clearly established a claim by the defendants on the plaintiffs in error for a manifest breach of instructions, and upon these facts the jury had given their verdict. As to the rule adopted by the jury for the assessment of the damages, they had exercised their sound discretion without any instructions from the court which interfered with this their peculiar province.

As to the notice of claim, by the defendants in error, of the 18th of April 1825, it was sufficient. They might have rejected the articles altogether, or have received the proceeds arising from their sale in the regular course of trade, and claimed, as they have in this case, damages for the loss.

Notice of claim is not necessary. If the party does not intend to refuse the article altogether, it is not required; and the neglect to do so is no bar to a claim for damages.

In this case the letter of the defendants is an express disavowal of the acts of their agents. Cited, Lorain vs. Cart-wright, 3 Wash. C. C. R. 151.

Mr Chief Justice MARSHALL delivered the opinion of the Court.