Majority
p. 665Codwise, Jun. Ludlow and Codwise, against Hacker
Headnote
If a master of a ship be guilty of a breach of orders, by pursuing voyages contrary to his instructions, and invest the proceeds of his freight in articles which his owners take to, this, if accompanied with a declaration that they find no fault with him but for not writing, will be a waiver of any right to sue for damages, on account of disobedience. The acts of a principal are to be liberally construed in favor of an adoption of the acts o. an agent.This was an action on the case lor disobediencé of orders.
*The plaintiffs were owners of a ship called the [*527] Young Eagle, of which they had given the command to the defendant, on a voyage from Hew York to Martinique, from thence to Hew Orleans, and in case nc freight should offer at the latter place for Hew York, then to proceed to the Havanna, and from that port home.
p. 666
In Martinique, the defendant was addressed to Messrs Hanoi & Co. with injunctions to consult them in what man ner to best promote the interest of the voyage, and to let their opinions have due weight. The letter of instructions, in addition to this, contained the following passages: “It is our desire that you strictly adhere to the following instructions, which are to be considered as binding on you, ana not to be deviated from. From Martinique you are to proceed with all possible despatch to New Orleans, and there value yourself on Mr. James Garrióle, to whom the ship is addressed there, and to whom you have letters, and then use your interest and address to procure a full freight home to New-York. Should there -unfortunately be many vessels there, loading for New-York, yon must then try whether, offering to take freight on more reasonable and lower terms than the other vessels, would not be the means of procuring you a full freight in preference to them. If so, it is our orders that you take freight at under rate, in preference to returning home in ballast. Although the ship is consigned at New Orleans, you are nevertheless to advise in all matters relative to our interest with the consignee. You must pay particular attention to see whether our consignee attends to our interest in his exertions to get the ship a freight, and if not, you will of course see the necessity of your redoubling your exertions to procure freight, and not to place your dependence on the consignee; you will, therefore, pay strict attention to the foregoing request, as our chief dependence is placed on your exertions. Further, as a last resort, in case you can procure no freight for the United States, you may then take freight for the Havanna, and from thence to New-York, provided you havi one that offers that will answer. You will consult in the Havanna, with Santa Maria Cuesta & Co. Finally, ■p528] if after obtaining the best ‘^information whether freight can be procured or not, and giving the ship a fair chance, by waiting two or three weeks, if none offers, you’ll then return back to this port, with all possible de>
p. 667
spatch. It is our orders that you take freight at under rate, in preference to returning home in ballast, or if a full freight was to offer for Philadelphia, or Boston, or any port in the United States, you might take it.”
The vessel sailed from. New-York, arrived at Martinique, and, departing from thence, reached New Orleans safely on the 2d of October, 1799. Whether any freight then offered for New-York was not shown. But the defendant procured one for the Havanna, to the amount of 5,225 dollars, with which he sailed in 30 days after his arrival. On the passage, and within six hours’ sail of his port, the defendant wrote, by a brig he met, a letter to the plaintiffs, saying, that if he could get permission, he should go from the Havanna to Campeachy. Having safely reached the Havanna, the defendant received payment of his freight, partly in cash, and partly in a bill on B. Bolf, of New Orleans. With the cash he purchased sugar, which he shipped to his owners in a vessel named the Ohio, and having delivered his cargo, weighed anchor on the 29th of December, 1799, for New Orleans, where he arrived after a tempestuous voyage of 40 days. He there received, on the 8th or 9th of February, 1800, a letter from his owners, dated 2d of January, 1800, ordering him by no means to go to any Spanish port, but rather to return in ballast to New-York. In a subsequent one, directed to the Havanna, dated the 29th January, 1800, and written on the very day of receiving an account current from Santa Maria Cuesta & Co. charging them with 50 boxes of sugar, paid on account oi the freight of 5,225 dollars, the plaintiffs blame the defendant for not writing by every opportunity ; and request him immediately to return to any port in the United States, alleging as a reason, that the rate of insurance on vessels trading from one Spanish port to another, was so high as to run away with everything made. At the conclusion, however, of the letter, the plaintiffs add, “ All the fault we find, and which is a-great one, is your omission and neglect of writing us by every opportunity, and conclude
p. 668
[*529] with, wishing *yoa speedy back.” From New Orleans the defendant wrote, acknowledging the receipt of the plaintiffs’ positive directions to return, but stating, at the same time, the impossibility of his immediate compliance, as he had, .with the proceeds of the bill on Eolf, purchased, on account of the plaintiffs, a cargo of sugar boxes, with which it was his intention to go to the Havanna, and invest the proceeds in a cargo for New-York. In consequence of this, the defendant sailed from New Orleans to the Havanna, where, after a passage of 9 days, he arrived on the 7th of April, 1800, sold his boxes, bought with the amount of the sales a cargo of molasses, shipped them on board his own vessel, set sail for New-York, and reached the quarantine ground in the month of June, 1800.
The plaintiffs here took possession of the vessel and her cargo, which they sold on their own account.
It was admitted that the plaintiffs had insured the molasses as their own property, and had also effected policies on the vessel on her' several voyages. The defendant gave in evidence, that on his first arrival at the Havanna, in December, 1799, the vessel was defective in her spars, and the witness who testified to this deposed, that he would rather not have come to the United States than have embarked in her in December. He further added, there was then no convoy for the United States front the Havanna.
It appeared, however, on the case, that in the 40 days’ passage from the Havanna to New Orleans, the ship, notwithstanding the bad weather encountered, never complained in body or rigging.
The general veracity also of the defendant’s witness was impeached. From the log-book it appeared, that no mention was made of any fail are in the masts or rigging; that in the last voyage, muck tempestuous weather was experienced off Sandy-Hook, in which water mixed with molasses was pumped up, and sometimes more molasses than water. Some loose declarations of the plaintiffs, made to particular friends of the defendant, were given in evidence, tending in
p. 669
show that the defendant had acted according to the best of his knowledge, and that he was an honest man; confessing also,* that he had taken the bill on Rolf [*530] to purchase a cargo on their account; and that, though they were dissatisfied with his not writing, they never said any thing about his disobedience of orders. The defendant, in addition to this, offered to prove that he had, in every part of his conduct, advised with the correspondents of the plaintiffs, and followed that course they sanctioned.
The counsel for the defendant contended, at the trial, 1st. That the words in the letter of instructions, “ as a last resort, in case .you can procure no freight for' the United States, you may then take freight for the Havanna, and from thence to New York, provided you have one that offers that will answer,” left the defendant to exercise his discretion in the employment of the ship, in case no freight should offer for the United States.
2d. That the plaintiffs declaring themselves satisfied with the manner of employing the ship,, and declaring, in writing, that the only fault they found with him was his not writing oftener, was either a waiver of any claim for deviation, or was evidence of the defendant’s having discretionary power of employing the vessel, in case no freight offered at the Havanna. *
3d. That the season of the year, state of the ship, the want of freight, convoy and advice of agents, formed a justification.
4th. That the insuring by the plaintiffs of the vessel and cargo from Havanna to New York, and accepting them on their arrival here, and exercising every act of ownership over them, was an adoption of the conduct of the defendant, and a complete bar to a recovery in this suit.
His honor Mr. Justice Badcliff, before whom the cause was tried, having overruled all these points, charged in favor of the plaintiffs, and the jury found accordingly.
On these circumstances, and on the four antecedent rea
p. 670It will be contended that the facts, as they appear on the case, evince an absolute breach of orders. But we rely that, even allowing [*531] they were broken *in various particulars, there has been an adoption of all the acts. If so, then they will be considered as done on account of the plaintiffs, and the defendant stands excused from answering in damages. This is evident, because in their letter to him, after full information of all that had passed, they not only do not disavow a single transaction, but go so far as to adopt them, by saying the only fault they find with him is, that he did not write. This certainly is exactly the same as saying, we are perfectly satisfied with your conduct. In conversation with individuals the same ideas were, after a full knowledge of all circumstances, in more than one instance reiterated. The expressions of discontent, which the letters of the plaintiff's contain, are all referable to transactions previous to the last letter, and were written before the account of the shipment of sugar by the Ohio had arrived. This was received by them, and sold on their own ■account. Was there no other circumstance to show the plaintiffs’ adoption of the defendant’s acts, this would suffice; but others are presented, from which they cannot escape. ."Knowing all that had happened, they insure the last cargo, that of molasses, on their own account, receive it from Captain Hacker when he arrives,, and sell it on their own account, without ever communicating with him in the least. All of these acts are after a full knowlege of the molasses having been purchased and shipped on their account. In commercial affairs between agent and principal, (for such the parties here really are,) the slightest assent of the principal should be construed as an adoption of his agent’s acts, because it is necessary, from their situation abroad, that they should occasionally act in a Iatitudinary manner. If
sons, it was moved to set aside the verdict, and grant a new trial.
Hamilton, for the defendant.
p. 671what is thus transacted be bona fide, the most trivial circumstance should be seized by this court, to say it is a ratification of all that has taken place. The court will see that this rule ought to be strictly enforced against the principal. Its being so will not in the least infringe on the rule of law which makes the agent responsible. If the principal desires to enforce it, he is at perfect liberty so to do ; but if he does not take his position on the rigid letter of legal doctrine, any equivocal act ought to be deemed an assent. It is his duty to disavow by some open act. *In other countries this is invariably the [*532] case; the principal, by some judicial process before a notary, protests against his agentand this is a sufficient proof of the disposition with which any subsequent act is done. Though our jurisprudence does not know any tribunal to have recourse to for this, yet some method ought to be pursued to show the quo anima of the principal in taking goods, if he does not mean to be bound'. He should not lay by and wait events; if the result be favorable abide by them, if unfavorable refuse; this would be mala fides. But let that be how it will, the reception of the cargo by the Ohio, the insurance, and sales by the plaintiffs, are conclusive against them. Little stress can be laid on the circumstance of that cargo being the amount of their own proceeds, because, if so, it legalizes the voyage. The court will not permit any one, when an agent has acted contrary to orders, to insure the subject matter as his own, and call on the underwriters to pay when he had an intention to consider it the property of another; for it would be a fraud on the underwriters. ' The state of the cargo ought to be declared, or the insurance made for whomsoever it may concern; for no man can, in his contracts, have various intents on the same subject. It is no answer that the principal might, for caution, secure himself; so he may, by taking the property into possession ; but he ought not to sell, for then the act of sale is decisive, if made as his own; especially when the agent is on the very spot; for he
p. 672might then, on a disavowal of his acts,'have paid them* their money and taken to his goods. Either, then, the plaintiffs converted the property, or received it on their own account, and thus ratified the principles of the voyage. The court will not allow them to say they converted, because no man shall be permitted to say he is a wrongdoer, when his conduct will bear an innocent construction. For the general principles which govern in cases of adopting the acts of another, the court will find all that has been advanced fully confirmed in Smith v. Cologan,[1] 1 D. & E. 188. (a) Against this we are aware Cornwall v. [*533] Wilson, *1 Vez. sen. 509,[2] may be cited; in that case, however, when the goods arrived they were disavowed; and it was from the subsequent acts that even the disavowal was controlled by acts like these, for there the goods were insured and sold by the principal. Instead of the disavowal as there, in express terms, we here find the plaintiffs acknowledging themselves contented with the defendant’s general conduct, and dissatisfied only with his not writing. The present is a simple action by a shipowner against his captain for disobedience of orders. It is not a case between a merchant and his factor, but of a master against a servant employed to do a sp< cial act, and no more. Here the defendant was engaged
Hopkins and Harris, contra.
p. 673
for a particular voyage, which the plaintiff calculated would expire at a certain time, at which period, he counted on being able to employ his vessel in another service. The case states the connection between the parties, and it is unnecessary to read it. But the facts show an original intention to deviate from instructions; for, when off the Havanna. and going into that port in obedience to his orders, he writes a letter to the plaintiffs saying he should go to Cam-peachy. After this, any expressions from them, evincing no thorough disapprobation, can be deemed no more than a matter of prudence to get back their vessel. Her various voyages, the facts in evidence prove, were not from a disability in her rigging to encounter this coast. The defendant was clearly a servant^cting under orders ; to enable, however, the plaintiffs to have recourse against him for a breach of these orders, it is said they must abandon the property about which he was ordered to act. This is really new law. For surely it is not a principle, that where an owner of property sues his agent for misfeasance respecting that property, he must abandon the property or its proceeds to entitle him to his action. Or if a bailee misuse goods bailed, must the bailor relinquish the goods before he can institute a suit? or should he take them back, is his right of action gone? We conceive, unless the law is widely mistaken, that he may take back his property, and *then have recourse to his action for [*534] damages, without trusting to the personal responsibility of the defendant for every kind of recompense. Suppose a ship and cargo to the East Indies, consigned to the captain, who grossly disobeys; on his return are. the vessel and proceeds to be given up, if compensation for damages is sought? This would make it an affair of calculation, in which the loss must be balanced against the means of the defendant. The plaintiffs seem to confound original property, owned by a principal, and intrusted to orders, with orders given to acquire property by their execution ; they want to set up the taking back a man’s own
p. 674from his servant, as the adoption of the acts of a factor in purchasing goods. It is said, however, that the court ought to lean in .support of acts of adoption in favor of the agent, and against the principal, if the conduct be bona fide. However that may be is indifferent to the present question, which is simply dssumpsit, charging no fraud, but a mere breach of duty in not performing the orders he undertook ■to obey. For doing which he shows no kind of excuse ; and as every misfeasance is, in presumption of law, mala fide, some justification ought to appear. Ho argument.of approbation can be drawn from a few concluding words in one of the letters. The whole tenor of the correspondence, on the part of the plaintiffs, shows dissatisfaction, and not only repeated complaints of jais disobedience, but continued injunctions to obey the orders given him. When it is considered that the defendant was abroad with the property of the plaintiffs, and that property so easily moved from place to place, the court will see the necessity and caution that the plaintiffs were obliged to use, in concealing their intention from a man who was violating every direction he received. This will easily account for all those expressions, either in writing or conversing, which seem to imply no blame. The insurance was rightly made, because the plaintiffs did no more than insure their own, and, of course, taking back their own cannot waive any cause of action which .they had for disobedience of orders. On this very point the court will see the case from Yezey directly in favor of the plaintiffs; and that every insurance [*535] is for the benefit *of all whom it may concern, the face of every policy shows. In the citation from Durnford & East, there was an express approbation ; so that, taking the present case every way, it makes.against the defendant. This is an action for breach of orders. Those orders the case states explicitly, nor do they admit of any deviation. -Even the advice of the correspondents of the plaintiffs can be no excuse, for they were to be consulted only on the manner of carrying the orders into
p. 675The defendant was more [*536] than a mere master sailing according to his letter of instructions. He had a general discretionary power over
effect, not whether they were .to be totally laid aside; for, with respect to one, the defendant was absolutely put on .his guard, and cautioned. But the formality of this sanction cannot be pretended, for the letter of the defendant, written off the -Havanna, declares an avowed plan of disobedience. Qf this, at the time of the conversations and letter rdied on, the plaintiffs were ignorant. They, therefore, could never have approved what they did not know. Besides, they took place with third persons, and can therefore never be applied to a ratification of what passed with another. The doctrine contended for is this, that if a captain of a vessel employ her, contrary to all the orders of his owners, and defeat every plan they and arranged, yet if they take ivhat has been purchased with the earnings of their own property, the captain is exonerated from all responsibility for the misuse of it. The fact is, the owners take back no more than their own; and at the utmost it can go only in mitigation of damages. Suppose a cargo tent to be sold at a certain, price, and the consignee sells at an under rate, if the proceeds be received, shall the party be prevented from recovering the excess which it might bo shown could have been gotten; should the court sanction the reasoning on the other side, a master of a vessel may go on from voyage to voyage, employ himsélf for ten years, and if his owners should take back their own vessel and her freight, he not only ceases to be responsible for a breach of orders, but his acts are adopted, and he, of course, becomes entitled to wages for the whole time. The result oí such a position must be ruinous to all commerce, and it is not to be supported by any authority whatever. In 13 Vin. 6, 7, 8, the court will see that accepting an article purchased, or the proceeds of one'sold, is not always a re lease of damages arising from disobedience of orders.
*Hamilton: in reply.
p. 676the vessel, and was, in various situations, to act as ha thought fit. The question, then, does not resolve itself into a strict compliance with orders, but whether there has been a bona fides, in which case, there is always a great allowance made. It was offered at the trial to be pr< >ved that every step taken by the defendant was with the concurrence of the plaintiff’s correspondents; this alone is enough to evince that good faith, which will lead the court to construe every act of the plaintiffs as done in a spirit of adoption, for in no one instance do they allege a breach of orders. We contend that the having received the-freight is an adoption of the acts by which it was earned, and exonerates from all responsibility on account of disobedience.
This was an action on the case brought by the plaintiffs against the defendant, who was captain of a ship in their employ, for breach of orders.
On the part of the defendantit was alleged, that the instructions vested some discretionary powers in him; but that, admitting he had violated his instructions, still the plaintiffs have, by their conduct, adopted his acts, and thereby waived all claim to compensation. The general principles of law, as applicable to cases of this description, are not controverted. There can be no doubt but that a captain is responsible in damages to his owners for disobedience of orders; and there can be as little doubt but that the owners may adopt such acts as would be deemed a violation of instructions, and thereby waive all claim to damages on that account. The great difficulty arises in the application of the law to the case before us. The original instructions of the plaintiffs are very particular, and seem not to give any great latitude to the exercise of discretion. They say, “It is our desire that you strictly adhere to the following instructions, which are to be considered as binding on you, and not to be deviated [*537] from.” They then proceed *to point out the yoj‘
p. 677
age, and the conduct to be observed by the captain. It-appears to me, clearly, that the defendant’s returning te New Orleans from the Havanna, instead of coming to New York, was a breach of orders. But the most important question appears to be, whether there has not been a waiver by the plaintiffs of their claim for damages. The circumstances relied on by the defendant, to show that his acts have been adopted by the plaintiffs, are various. Their force and importance will depend much on an accurate attention to dates. I would, in the first place, observe, that there is no pretence but that the defendant acted in good faith, and in a manner, as he supposed, best calculated to promote the interest of the plaintiffs. The great confidence which they uniformly, in all their letters, avow to repose in him, even after a breach of the orders, as appearing in the case, afford a strong presumption that the defendant, at least, if not the plaintiffs themselves, supposed he had some descretion left him as to the employment of the ship. These considerations ought to induce us to give the most favorable construction to his acts. The defendant, by letter of the 25th of November, 1799, when at sea, on the voyage from New Orleans to the Havanna, informs the plaintiffs, “ that if, on his arrival at the Havanna, he finds no advice from them, he intended to go to Campeachy, if he could get permission. If he could not, he should run down to New Orleans for a freight home.” This communication is unaccountable, if the defendant supposed no discretion left him, and that he was bound by the strict letter of his instructions. He probably placed great reliance on that part of his orders which expressed so much confidence in him, and declares that the chief dependence was placed on his exertions. It does not appear that the defendant received any advice whatever from the plaintiffs while at the Havanna, the first time. Their letter directed to him at that place, bears date the 28th day of November, 1799, the very day he arrived there, and there is no evidence that he received it before he left that place, which was on the
p. 678
39th of the ensuing month,- on his voyage back to Hew Orleans. It does' not appear that any freight [*538] offered for the United States, or that the *Oaptain , sought for any. The plaintiffh, by letter, dated the 2d of January,-1800, acknowledge the receipt of the information from the captain that he proposed going to Campeachy, or returning to Hew Orleans, and they greatly lament such determination, on account of the high premiums of insurance on that voyage, but say nothing about his having broken his orders. Again, by letter of the 29 th of January, 1800, the plaintiffs complain much of the defendant for not writing oftoner, and advising them of his situation, so that they might keep'the ship and cargo covered by insurance. This letter, which may emphatically be styled a letter of complaint, is so far from containing any suggestion of a violation of orders, that it expressly declares, “ All the fault we find (and which is a great one) is your omission and neglect of writing us by every opportunity.” When this letter was written, the plaintiffs had full knowledge of the situation of the ship; they well knew that the defendant was pursuing a different line of conduct than the one they had marked out for him; still they found no fault with this: the only complaint was, that he did not keep them advised of his situation, so that they might secure themselves by insurance. And by the testimony of Mr. Bloodgood, it appears that, in the month of February, 1800, and after the plaintiffs knew of the defendant’s intention of going from the Hávanna to Hew Orleans a second time, Mr. Ludlow, one of the plaintiffs, declared that Captain Hacker was an honest man, and that he believed he did the best for their interest, and the only fault he found was his not writing. He made no complaint of disobedience of orders. These acts and declarations, I think, afford an irresistible conclusion, that the plaintiffs intended to adopt all the acts of the defendant of which they were apprized the beginning of February, 1800. These acts included the voyage from the Havanna to Hew Orleans. It remains to
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be examined whether the plaintiffs have, by any subsequent conduct, adopted the acts of the defendant after that time. It appears by the defendant’s letter, dated at Hew Orleans the 23d of February, 1800, he had received the plaintiffs’ letter dated the 2d of January, 1800, wherein they gave him positive orders to come immediately home with the ship. *But by the same letter he [*539] apprizes them that he had previously purchased a cargo on their account, from which he could not retract, which made it necessary for him to proceed on the same route he went before. And by another letter of April the 19th, he apprizes them of his arrival at the Havanna a second time. After this, we find the plaintiffs insuring this ship and cargo, as their own, on the voyage from the Havanna to Hew York. On her arrival at Hew York, they took possession of her, sold the cargo, received the proceeds, and treated them in every respect as their own. This conduct it appears to me, is conclusive to show that they considered the reasons assigned by the defendant for going to the Havanna a second time, as sufficient; and that they intended to adopt his acts. In the case of Smith and others, v. Colgan and others, 2 D & E. 188, in a note, it was decided by Buller, J. that where a principal, with knowledge of all the circumstances, adopts the acts of his agent for a moment, he ought to be bound by them. So also, in the case of Cornwall v. Wilson, 1 Vez. 509, where a factor in the purchase of goods had exceeded the price limited, yet the principal received the goods, and disposed of them as his own ; and it was held that this was an adoption of the factor’s act,' notwithstanding the principal, by a letter, had expressly disavowed receiving the goods on his own account. Lord Chancellor Hardwieke declares the principal concluded by his own acts; by taking the goods to himself, and treating them as his own; and that these acts, being subsequent to the letter disaffirming the contract, explained the nature of the whole 'transaction, and the
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intent with which he acted.[1] These. I think, are salu' tory principles, and such as the facts before us will fully warrant us in applying to the present case. I am therefore of opinion a new trial ought to be granted.
There can be no doubt, I think, but that the defendant was guilty of a breach of orders, in returning back to New Orleans from the Havanna. Here the deviation from his instructions commenced, and the only question is, whether the plaintiffs have, by their acts and declarations, ratified his conduct, and precluded themselves from the present suit. The rule is, that if, with a [*540] knowledge of all its circumstances, *a principal adopts the acts of his agent, he is bound by them. 2 D. & E. by Buller, J. 1 Vez. 509. This principle was recognized by this court, in the case of Towel & Jaclcson v. Stevenson, 1 Johns Cas. 110 , decided in October term, 1799. In that case, the defendant received a bill of exchange to collect for the plaintiffs, and to enable the endorser to secure himself, he surrendered it up to the endorser, without receiving the money, and consequently, made himself liable. This fact was afterwards disclosed by him' to the plaintiffs, who, without any express discharge to him, or ratification of his act, assumed the business of pressing the endorser for payment. The endorser failed, and this 'assumption of the business, after a full disclosure had been made, was held to exonerate the defendant. The defendant, in the present case, seems not to be liable to the charge of any intentional wrong. Although the great outline of the voyage was prescribed to him, he was, in every other respect, left with large discretionary powers. It is admit ted, as not liable to dispute, that an explicit approbation of the conduct of the defendant would be a waiver of any
[1] [1] See Delafield. v. State of Illinois, 26 Wend. 192 ; Lawrence v. Taylor, 5 Hill, 107 ; Moss v. Rossie Lead Mining Co., 5 Hill, 137 ; Caines v. Blecker, 12 J. R. 300; Vienna v. Baulay, 3 Cow. 281 ; Towle v. Stevenson, 1 J. C. 110 Armstrong v. Gilchrist, 2 J. C. 424.
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remedy on the part of the plaintiffs; and are not the circumstances in this case equivalent to such approbation? When a factor is entrusted with large power, requiring the exercise of much sound judgment, and he acts with an honest, though misguided zeal, for the interest of his principal, it is just and politic to construe the acts of the principal pretty liberally in favor of an adoption of those of the agent. After the plaintiffs had full knowledge of the defendant’s second voyage to New Orleans, they insure, on their own account, the cargo and freight of such second voyage, and of the subsequent voyages back to the Havanna and to New York. They receive, sell and take to themselves the proceeds of the molasses, which were an investment by the defendant at the Havanna of what was to be traced back, as the result of part of the freight of the first voyage from New Orleans to the Havanna, and which molasses the defendant had shipped to the plaintiffs as for their account. They declare by letter to the defendant, that they have full confidence he would use his best endeavor to promote their interest, and that they find no fault with him, *except in his neglect in [*541] not writing to them, and they declared the same to other persons. These acts and declarations amount to something more than an equivocal adoption of the defendant’s acts — they are a clear and intelligible approbation. The molasses were the result of a conversion by the defendant of the freight, and yet the plaintiffs accept the molasses, as shipped on their account, and sell them as .their own. During all these acts, there is not a disavowal in any shape of the defendant’s conduct. In the case of Cornwall v. Wilson, 1 Yez. 509, the factor, in the purchase of hemp, exceeded his limited price. The principal, by word, refused the contract, as he had a right to do, but he still took the goods to himself. He acted with them as his own; sold them as his own, and not as factor for his factor. Lord Hardwicke held that notwithstanding what he said, he meant to take them as his own, and de
p. 682
creed, accordingly, that the principal was bound by the price given. The present case is certainly as strong for the defendant, and I am of opinion that the plaintiffs have sufficiently sanctioned the defendant’s departure from his instructions, and are not entitled to recover against him on that ground. The verdict is accordingly against evi donee, and ought to be set aside, on payment of costs.
The plaintiffs, as owners, prosecute the defendant for breach, of orders, as master of their ship Young Eagle.
The defendant has committed a breach of those orders, and for this he is liable in damages, unies justified by the peculiar circumstrnces of his situation, or discharged by the subsequent conduct of the plaintiffs.
The state of the ship created no impediment. She was completely repaired at New Orleans on her first arrival there. The season of the year was a fact known to the owners at the time they gave the instructions. The want of freight and convoy cannot form a justification, as they wére not events by which the conduct of the voyage was to be influenced.
For a discharge, on the ground of the plaintiffs’ having adopted his acts, the defendant relies on certain conversations between Mr. Ludlow and Mr. Bloodgood, [*542] the letter *of the plaintiffs of the 29th of January, 1800, their procuring insurance on the unauthorized voyages, and their receiving and selling the cargo of molasses he brought from Havanna to New York. The substance of these conversations, was that Mr. Ludlow believed Mr. Hacker an honest man; that he did the best for their interest; and that the only fault he found was his not writing. When these conversations took place does not precisely appear, further, than that one was about the 6th of February, 1800, the other in the spring of that year. The letter of the 29th of January is to nearly the samé
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effect; containing a declaration that all the fault they found was the defendants omitting to write to them.
It must be remembered that at the time of these conversations, and of Writing the letter of the 29th of January, it does not appear that the plaintiffs knew of his having actually committed a breach of orders. They only knew he contemplated it when at sea on the 25th of November,- in the event of his not meeting at Havanna with advice from them. This cannot, then be construed into an approbation of conduct, of which they probably were ignorant. But were it otherwise, the approbation relied on to excuse malconduct, where by paroi, merely, ought to be unequivocal and explicit; and a mere declaration of a belief in the honesty and integrity of the defendant, and a refusal to complain of his conduct, cannot be sufficient; Many an honest man has committed errors which have rendered him liable in damages, and many an injured one has refused to complain.
The acts of the plaintiffs remain to be considered. Their procuring insurance on the unauthorized voyages, and their receiving and selling the molasses. I can discover no prinprinciple on which either of these acts can be construed into an adoption of the conduct of the defendant. It would be a regulation ruinous to commerce, if whenever á portion of a merchant’s property is sacrificed by the unauthorized acts of the master of his ship or consignee, thát he should be obliged to jeopardize the remainder, before he shall be entitled to a recovery in damages. In the present instance, the owners’ property, in neither the vessel, her cargo, nor her earnings, *was in [*543] any wise changed by the conduct of her master. They were, therefore, perfectly correct in what they did, and their right to recovér remains unimpaired. I am of opinion the defendant také nothing by his motion.
New trial granted.
Cases cited
- Towle v. Stevenson 1 Johns Cas. 110 p. 680