Miller v. Livingston — 1 Cai. 349a

Majority

p. 435

Miller against Livingston.

Headnote

Where commissions are allowed to a captain on his sales and investments, this will not entitle to them on goods he carries, to deliver according to a contract antecedently made by his employer, and for which he does not receive payment. Copies of letters, &c., remaining in a foreign court of admiralty, and duly authenticated under the seal of the court, when returned to a commission issued from this court, may be read in evidence.

This was an action of assumpsit, brought by the plaintiff

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as the factor of the defendant, for the amount of his commissions on selling a quantity of leather.

The cause was tried before Mr. Justice Kent, at the New York circuit, in March, 1801, when the following facts were given in evidence.

That in January, 1795, the plaintiff sailed, in the character of master and supercargo of the ship Somerset, belonging to the defendant, on a voyage from New York to Bordeaux, in France. The vessel was laden with a very valuable cargo, consisting of a variety of articles, besides a quantity of leather, which the defendant had, in an engage-[*350] ment entered into between him and the minister *of the French Republic in the United States, agreed to deliver to the French government. By the terms of the contract, the leather was to be paid for on delivery, and if not, the minister bound himself that it should be paid for at the treasury of the United' States, out of the debt due to the French Republic. In March following, the plaintiff arrived at Bordeaux, and after encountering some difficulties, delivered the leather, which not being then paid for, the plaintiff, according to his orders, made a regular protest against the French Republic, completed the sale of the residue of his cargo, and invested the proceeds in another, with which he set sail for New York; but in the course of his voyage was captured and carried into Bermuda, where vessel and cargo were condemned by the vice-admiralty court of that island. All the papers relating to the outward cargo being on board, were according to the custom of the admiralty in matters of prize, lodged in the registry of the court. To prove, therefore, his letters of instructions, and authorities under which be acted in.the disposal of the leather, the plaintiff offered in evidence the deposition of the registrar of the vice-admiralty court, annexing, under its seal, authenticated copies^[4] of all original letters and papers

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found on board the Somerset, together with a full copy of the proceedings against her and her cargo.

To the reading of these, the defendant’s counsel made objections, which were overruled, and they were accordingly received.

From these it appeared that the defendant, in his first letter of instructions, dated the 3d of January, 1795, says, “You have the invoice and other papers that respect the cargo now on board the ship Somerset, and which goes consigned to your address. The commissions upon the sales and investments will be 2 1-2 per cent.” He then proceeds to direct the conduct the plaintiff was to pursue in deliver-' ing the leather, and how he was to manage in order to obtain payment, but no authority whatsoever was given to sell..

In a subsequent letter, dated the 3d of March,

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[*351] 1795, *the defendant says, “If you find that you cannot get your money for the leather, agreeable to contract, and you can sell at near the price, it will be best so to do.”

In the transaction of the ship’s business at Bordeaux, the plaintiff employed under him the house of Barton, Oasson & Barton, at a commission of 2 1-2 per cent, out of the commission of 5 per cent, allowed him by the defendant; but they charged no commission on the leather. It appeared also in evidence, that the whole amount on which a commission was charged, was 59,415 dollars; that the captain’s wages were only 30 dollars per month, though masters for such voyages usually then received 50 dollars a month; and that the plaintiff had signed a receipt in full, at the foot of an account in which commissions for the leather had been charged, for the balance claimed by him from the defendant, after deducting the commissions now demanded; but the words “in full” were written, with a line drawn through them.

Under these circumstances, the jury found for the plaintiff the amount of the commissions claimed by him, being 2 1-2 per cent, on the invoice cost of the leather delivered, subject to the'opinion of the court, whether he was entitled to any commissions, and at what rate ? according to which, the verdict was either to stand or be diminished; but if the court should determine that no commissions were due, then judgment to be entered for the defendant.

Hamilton, for the plaintiff.

The principal question is, whether the plaintiff is entitled to a commission on the leather ? There is another supplementary point, as to the admissibility of the evidence of the admiralty proceedings, from whence we derive the testimony of the defendant’s letter. The right to the commission will depend on the construction of the defendant’s letter. By that, the cargo is consigned to him. -There is a little apparent ambiguity relating to the two and a half per cent, whether to be taken

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on the sales and investments distributively or copulatively ? But on this there is no actual difference of opinion, for the counsel on the other side agreed to the *dis- [*352] tributive acceptation of the words, with this only exception of bills and money. The dispute now is as to the leather. On the latter there can be no doubt. The circumstances of the case show there cannot be a different construction. The plaintiff was consignee of the whole cargo. The mere being a consignee, according to mercantile law, entitles to commissions; for commission is incident to consignment. He was to have a commission on the sales. The leather was only contracted for here. That contract and the sale in consequence of it were both consum mated by the delivery which the plaintiff had to perform. All writers distinguish contracts from sales. The latter are perfected only by payment, or delivery; and this last the plantiff had to perform, under a load of discretionary power, which he had to exercise, in weighing or delivering, as circumstances might require: besides, he had an alternative power to sell, or deliver; he was, therefore, agent and consignee. The defendant, it is understood, relies on the contract and sale of the leather being here ; therefore, being the effect of his own labor and exertions, that the plaintiff, in this respect, was a mere captain, and cannot claim any commission. This has been already confuted ; the trouble the plaintiff was to have is stated in the letter of the defendant, and it is not presumable that he was to have it for nothing; especially as his situation charged him with a responsibility, which the court can never suppose to be gratuitously undertaken. As general consignee of the whole cargo, commission on all must be implied.

On the admissibility of the proceedings, the court will observe, that papers often gain respect in consequence of the situation where found. Old papers with wills, &c. are not accredited merely from their antiquity. There can be no doubt that sentences in the admiralty, for the purpose of establishing any fact they contain, and all the proceed*

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ings incident; are prima facie evidence. The question now' is, whether proceedings relating to the subject of controversy shall be received, when that subject was not the matter before the court there: If decided against the [*353] plaintiff',' it will only turn *him round to a court of equily, which the court certainly will not do. The objection to the admission is the want of proof of the handwriting of the defendant. The court will remember there has been a notice to produce the original; that the letter m question has every circumstance to make it believed a fair and regular document; it was the guide of the plaintiff’s conduct, and has been forcibly taken from him; it was against his consent, and without his concurrence, that it was placed in the archives of the court of admiralty, where it is irrevocably fixed, from whence it can never be removed: it is adduced only as prima fac-ie evidence ; therefore, the defendant was at liberty to rebut its contents. In our own courts a copy thus authenticated would be good evidence, and the almost impossibility of sending a person to authenticate by inspection, is an argument, from the excessive inconvenience, why the evidence should be received. No one can disbelieve the fact. The only difficulty is the technical one, of establishing the hand-writing; but, in the present case, the document ought, abstracted from the rule of law, to have its weight.

Hoffman and E. Eivingston, contra.

First, as to the admissibility of the testimony. The court must depart from every rule before they can be inclined to admit it. Suppose the letter itself had come into court, and been produced, would that have been enough to have it read before a jury ? Must not the hand-writing, the execution, as it might be called, have been first established ? Waiving, therefore technical reasoning, shall a letter read in the court of admiralty, and made an exhibit' there, become; in this circuitous mode, evidence here, where" the letter itself, the very exhibit, would not be testimony ? Á. plaintiff cannot, by

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merely producing a paper, make it evidence Tor him. But the argument is, that if he will first exhibit it in a foreign court of admiralty, the copy shall be better than the original. The difficulties and inconveniences arise, as they ever will, in consequence of departing from established rules, and is not an admissible argument. The law points out a mode, a bill in equity. In the admiralty no proof is made *of the genuineness of the letter,^[4] nothing but a [*354] mere naked possession. But even admitting it, the case itself, when plainly stated, solves every difficulty. The leather was only to be delivered in France, not sold; that business was done here. The plaintiff filled two characters, and each consistent; he was to deliver the leather as master; in this capacity he was a mere carrier, the residue of the cargo he was to sell; and here he was consignee, to receive the commission of 2 1-2 per cent, on sales and investments, distributively. The question is, was the leather sold by him ? If so, he is to be paid a commission; if not so sold, he is not entitled to any. He must, according to the counsel’s own position, contract and deliver to make a sale. The plaintiff only delivered; then, on the principles relied on, he did not sell. If paid for in France, 2 1-2 per cent, commission was to be allowed. It is not now paid for, and the plaintiff cannot, on the leather, claim a commission. It can be put in no other shape. The delivery, therefore, was all the plaintiff performed, as to the leather; that was in the line of his duty as captain, and for that he has his wages. These very commissions were charged and relinquished. In the account which makes a part of the case, they were claimed, but on being objected to, were stricken out, and a receipt given for the balance without them.

Commissions are claimed by the words of the letter of directions; if,- then, they are not plain, explicit, and bear

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ing the fullest proof, they are not to be allowed. One must be ignorant of the English language if they ought; the words are “ the commissions upon the sales and investments.” Was there a sale? Was there a receipt of money or bills ? Was there an investment? In these three cases, commissions were to be allowed, not otherwise. But the qualification of consignee confers, it is said, wonderful rights; that the mere character implies a title to commissions. Consignment alone gives no commissions; it is complying with that consignment, and the conditions on which made. Commission is the child of sale ;^[4] the result of bene[*355] fit to the parties, not the mere placing in *the hands of another, when nothing is done; still less when what is done is contrary to orders. The instructions are, “ to be delivered, their paying you on delivery.” Eon-obedience of this positive order is an answer to the claim of commission. The contract being in the alternative, for payment here or in France, is nothing to the purpose. The defendant was to decide on the place, and he chose it to be at that of delivery, and on delivery only. That the wages were less than ordinarily given, was the natural and reasonable consequence of circumstances. The plaintiff was made consignee of the cargo, and had he obeyed his instructions, by receiving payment on delivery of the leather, and investing the proceeds for an India voyage, as was contemplated, his emoluments would have been excessive.. He has acted in contradiction to his orders, and, therefore, instead of commissions, is liable to responsibilities. As to the evidence, it may be procured in another way.

Hamilton, in reply.

It will be necessary to add only one or two observations to the reasons for admitting this testimony. It is not asked to be received as conclusive, but only as prima fade evidence, subject to be rebutted. It,

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therefore, is not put on the same footing as a letter with the hand-writing, or execution, as it has been termed, fully-established ; in this last case it would be final. The determination of the court is of immense importance; but they will recollect that the original letter was not voluntarily brought into a court to forward the interest of the party adducing it. The question is, whether an agent on the sea, in the prosecution of his business, in possession of all the papers and documents necessary to establish his agency, and claims, shall not, when despoiled of them, give a copy from a court of admiralty, where they are deposited, in testimony, as aprima facie evidence? for it is confined to that. The circumstances with which the proposition is qualified, the court will please to observe, take away all idea of fabricating papers to make use of them as testimony. Then will the court turn us round to a bill in equity ? We deny that the plaintiff was to deliver only; he was to ^exercise discretion, and that takes him out of the [*356] line of a mere carrier. The bill of lading is filled up to him as consignee; he had even a power to sell the leather on certain events, and his character of captain did not necessarily destroy or merge that of consignee. The prospects and hopes of a secondary voyage, wé contend, the court cannot infer as a consideration. It does not appear ; a mere chance cannot, by intendment of law, become a consideration for meritorious services, when there is a written contract. The captain could not be a mere carrier; for if he had been so, delivery to him would have been delivery to the French Eepublic, and he could have no power to withhold. On the receipt, it is necessary only to state that it was first written “in full:”^[4] so it stood when the

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balance was struck, including the commissions on the leather. When those were objected, to, and deducted, the words “ in full” were struck out, by drawing a pen through them. Why ? Because, as the commissions were not paid on the leather, the receipt was not in full, and those commissions are the object of the present suit.

delivered the opinion of the coart. The two questions presented for the opinion of the court in this case are,

1st. As to the admissibility of the evidence taken under the. commission.^[1]

2d. Whether the plaintiff was entitled to any commissions on the leather delivered to the French government ? and if to any, what rate was to be allowed ?

I shall pass over the first point, as to the admissibility of the proof, the other being the principal question, and going to the merits of the action. Admitting the letters to have been sufficiently proved, I think they will not warrant a construction that the plaintiff was to have commissions upon the leather. By the contract made between the defendant and the French minister, respecting the leather, as appears from the plaintiff’s, witness, no condition was annexed, or option left with the defendant to sell, in case payment was not made. The stipulation, on the [*357] ^defendant’s part, was absolute to deliver it; and in case payment was not made on delivery, the French minister bound himself to pay for it at the treasury of the United States, out of, the debt due to the French Republic. This being the. contract with respect to the ■leather, it is hardly presumable that it could be the inten

[1] [1] Sec Jackson v. Shephard, 6 Cow. 444 ,

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tian of the parties that the captain was to receive a commission of 2 1-2 per cent, for such delivery, especially as he was master of the ship, and received pay as such, though 20 dollars a month under the usual allowance. But he was always to receive commissions on a very valuable cargo, (amounting to 59,415 dollars, exclusive of the leather,) and this was probably the reason why his wages, as master, were reduced. These circumstances are mentioned as aiding, in some measure, the explanation of the letters, which may, perhaps, appear doubtful. In mercantile language, I be. lieve, it is well understood that commissions mean an allowance or compensation made upon the sale or purchase of goods; and in conformity to this understanding we find the defendant’s letter, which is made the foundation of this action. He says, “ the commissions upon the sales and investments vñll be 2 1-2 per cent." Has there been a sale or investment of this leather ? Certainly not; neither was there, by the first letter, any authority or direction given the plaintiff, on any event, to sell the leather; he was to deliver it to the agents of the French government. I confine myself now entirely to the first letter, because that is the only one that speaks of any commissions. We do not find the plaintiff, when the French government declined receiving the leather, offering it for sale, but he repeated his efforts to deliver it until he succeeded. This serves to show what his conceptions were with respect to his directions for disposing of this leather. We find also that Messrs. Barton Casson & Barton, joint agents with the plaintiff in the sale of the cargo, made no charge of commissions upon this part of the cargo. It is true, the defendant, by a letter dated the 3d March, 1795, two months after the vessel sailed, directed the plaintiff, if he could not get the money for the leather, agreeable *to contract, to sell it, if [*358] he could get nearly the same price. This letter, however, could not alter the plaintiff’s right to commissions under the former contract, which was consummated previous to the sailing of the vessel. * If this letter gave directions to

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’ make a different disposition of the cargo than his former instructions would warrant, and he had accordingly done so, it might, perhaps, have afforded a ground for a claim of commissions, or an action on a quantum meruit for such services; or if he had received the money from the French government, and invested it according to his first instructions, he might have been entitled to his commissions on such investments. But all this is completely answered by showing that he made no sale or other disposition of the leather, but barely delivered it to the French government, pursuant to the first directions of the defendant. The opinion of the court, therefore, is, the plaintiff was only entitled to commissions on the sales and investments of the cargo; that here has been no sale or investment of the leather, but only a delivery of it to the French government, according to the defendant’s contract with their minister, and, of course, no commissions due him; and that judgment ought to be for the defendant.

Judgment for the defendant.