Law v. Cross

Writ of error to the Circuit Court of the United States for the southern district of New York.

This was assumpsit brought in the Circuit Court by Alexander Cross, a subject of the British Queen, against George Law. The declaration (or complaint) contained the common counts, which the defendant answered with the plea of non-assumpsit and a notice of set-off.

It appeared on the trial that Law, the defendant, established a line of steamers to run between Panama and San Francisco. The line was composed of the Isthmus, the Republic, the Columbus, and the Antelope, which left New York to take their places in the line at different times, in the spring of the year 1850. The defendant employed Cross, the plaintiff, as his agent to make purchases of coals for the use of these ships. He (the plaintiff) was a member of a firm consisting of himself and four others, who were engaged in trade at Valparaiso, under the name of Cross, Hobson & Co., and at San Francisco under the name of Cross & Co. The defendant addressed his letters uniformly to Alexander Cross, but they were answered in the name of Cross, Hobson & Co.

The plaintiff made several purchases of coals for the defendant's ships under, and, as he alleged, agreeably to the special orders of the defendant. But for some of those purchases the defendant denied his liability to pay, averring that his directions concerning them had been disregarded and violated.

When the Antelope was about to sail for the Pacific, the defendant advised Cross of the fact, and directed him to purchase for her 350 tons of good coal at Valparaiso, and draw for the price. This was repeated twice afterwards. The plaintiff advised the defendant promptly that coal was scarce at Valparaiso, but he had purchased a lot for the Antelope at the fine port of Coquimbo, one day's sail further north. The coal was kept at Coquimbo, ready to supply the Antelope when she would come. But she arrived at Valparaiso, long after she was expected, in a crippled condition, and was obliged to stop there for repairs. The master, by way of saving time, thought it best to buy other coals at Valparaiso, where they could be put on board while the repairs were in progress. Being so supplied, he recommended that the coals purchased by Cross at Coquimbo should be sent to San Francisco. This advice was adopted, the coals were shipped for San Francisco, at a freight of $17 per ton, and the defendant was informed of the whole transaction, without delay.

The defendant also directed the plaintiff to purchase two cargoes of coal afloat, and send them to San Francisco as soon as possible. Within four days after the receipt of t is order, the plaintiff answered that the order had been filled by the purchase of 500 tons, the cargo of the Lady Lilford, to be delivered by that vessel at San Francisco; and 444 tons more, the cargo of the Duncan, which was then at sea, with the right to cancel the contract if she failed to arrive in sixty days. Full details as to prices and freight accompanied this communication. The cargo of the Lady Lilford was duly delivered at San Francisco, received and paid for. The Duncan arrived within the stipulated time, but her master being unwilling to carry the coals further, they were shipped on board two other vessels. The Charles T. took 350 tons, and the balance, together with the 300 tons at Coquimbo, went by the Amelia. Oliver Charlick, the general agent of the defendant at San Francisco, refused to accept the coals brought by the two last named vessels, and after various delays and much negotiation, they were sold at auction for whom it might concern.

The plaintiff's claim was for the price of the cargo bought at Coquimbo for the Antelope, the price of the Duncan's cargo bought for the general purposes of Law's line, with the freights, duties, expenses, and commissions, less the amount of the sales at San Francisco.

After the evidence was closed the defendant's counsel divided the law of the case into twenty-eight points, and requested the court to instruct the jury on each of them. Mr. Justice Nelson, who presided at the trial, gave his opinion of the legal principles involved without reference to this request. The substance of the charge, omitting details, and briefly stated, was this:

1. Cross had a right to sustain this action in his own name, though he was the partner of others, who did some or all of the business; because the contract was made by the defendant with Cross alone, and the correspondence showed that the defendant never recognised anybody but him as being concerned.

2. It was a question for the jury to determine whether the purchase of the Duncan's cargo, while the vessel was still at sea, was a purchase of coal afloat in the proper sense of the word as used in the defendant's order, but in the opinion of the judge it could make no substantial difference whether the contract was before or after the arrival of the vessel at the port of Valparaiso.

3. Whether the plaintiff's purchase of coal at Coquimbo for the Antelope was within the order to buy it at Valparaiso, so as to make the defendant responsible for the price of it, might be doubtful, under the peculiar circumstances of the case; but the shipping of that coal to San Francisco was undoubtedly beyond the authority given to the plaintiff; and the advice of Captain Hackley, the master of the Antelope, that it should be sent there, did not help the matter. But,

4. If the defendant was informed that his agent had, on his own judgment, departed from his instructions, he (the principal) was bound, within a reasonable time, to advise the agent that he did not mean to ratify his acts. Otherwise, he must be taken to have acquiesced in what was done, and was concluded from disputing the agent's authority. This rule, the judge said, was essential to secure just dealing between principal and agent, but whether this case came within its operation was a question of fact for the jury.

5. No authority to Charlick, the defendant's agent at San Francisco, had been shown, which made his repudiation of Cross's acts equivalent to a repudiation by Law, the common principal of both; but if specific authority to that effect had been given, it would be sufficient.

Under these instructions the jury found a verdict in favor of the plaintiff for $15,933 79, on which the court gave judgment, and the defendant took this writ of error.

Mr. S. D. Law, of New York, and Mr. Gillet, of Washington city, for the plaintiff in error.

Mr. Lane, of New York, for defendant in error.

Mr. Justice GRIER.