Lyle v. Clason — 1 Cole. & Cai. Cas. 233

Majority

p. 233

Robert Lyle v. Isaac Clason, and Isaac Clason v. Robert and John Lyle.

Headnote

THESE were cross-suits, brought under the following circumstances:

On the first of September1793, Robert Lyle engaged with Clason to go to Europe as his agent, and transact his business at a salary of 150/. per annum, New- York currency, besides his expenses. In consequence of this arrangement, Robert Lyle embarked on board a vessel of Clason's, called the Hare, destined to Hamburgh, with a cargo of sugar and coffee. In an account made out by Robert Lyle against Clason, he charges his salary for six months, at 42/. Ss. 4d. ending in March, 1794. No evidence appeared that Clason either then, or at any time after, discharged Lyle from his service ; and in an account rendered by him to Robert Lyle, he gives Lyle credit for cone year’s salary at the above rate.

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In March, 1794, at which time John Lyle was employed in the Loan-Office of the United States, Robert was in Paris, and while there, entered into a contract with the French government, ostensibly ill his own name, but in fact, for the house, and through the influence of Delard, Stvan and Co. of Paris, for the delivery of from ten to fifteen hundred tons of pot and pearl-ashes, in any port of France, at 53/. sterling per ton, (payable as soon as delivered) two-fifths in bills on Hamburgh, and three-fifths in louis d’ors, . with a licence of exportation for the specie.

On the nineteenth of the same month, Robert Lyle wrote to Clason an account of the contract, urging him to embark in it, and inclosing a more particular letter from Swan, offering Clason an interest in the contract, by the terms of which the profits were to be thus divided : one-third to Delard, Swan and Co. and two-thirds to Clason, giving to Lyle for the use of his name, a fifth of the whole ; one-third of which, was to be paid by Delard, Swan and Co. the remaining two-thirds by Clason. Robert Lyle, in his letter, cautions Clason against being too explicit in what he may write, for fear of capture, and advises him to let the language he might use, accord with the appearanee the business might be obliged to assume.

In consequence of this letter, and without any other information of the contract, than what the letter of Robert Lyle contained, Clason, in July, 1794, dispatched to France, under the command of one Gideon Gardner, a vessel named the Joseph, laden with pot and pearl-ashes, giving to Gardner at the same time, the following letter of instructions : '

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6C Capt. Gideon Gardner,

“New-York, 26th July, 1794.

“ Dear Sir,

“ You will please to take charge of the ship Joseph, cs and proceed as fast as possible to France. I shall “ not confine you to any one port, but by all means» “ endeavour to get into any port, the first that you c< can make, which, if you are fortunate enough in “ arriving safe, you will immediately apply to one of “ our American Consuls for instructions, respecting “ the customs x>f the place, and there make sale of “ your cargo to the best advantage for my account; “ perhaps you will be able to make a sale of the whole, “ to the republic of France, at a good profit, by taking “ part in brandy; which, if so, and the brandy should “ appear to you of a good quality, and at such a price “ as you might judge would answer to bring here, “ you will do it; if not, you will endeavour to sell “ for cash, and if times should appear favourable in “ England, you will remit the greater part of your “ avails to Messrs. Bird, Savage and Bird, mer- “ chants in London ; and if you don’t find freight from 6C France, or any other article that will answer, you “'may run to any port in England, and either load “ there with salt, or get freight, whichsoever you “ may judge will be most to my interest. However, it is impossible for me to give you any positive in- “ structions, from the precariousness of the times ; “ much will depend on your good judgment on your “ arrival. I think likely you may see or hear from Ro- “ bert Lyle ; if so, he will give you very essential as-

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“ sistance in your negotiating 1your business in that “ country.

“ I am, Sir, &c.

“ (Signed) ISAAC CLASON.”

Gardner set sail with the Joseph, and, on the 4th September, 1794, arrived at Cherbourg, From thence, he addressed himself to Delard, Swan & Co. and on the 9th of October, 1794, wrote them thus:

“ Cherbourg, 9th October, 1794,

“ Messrs. Delard, Swan &? Co.

“ Gentlemen,

“ I received yours this morning, of the 15th Fen- “ demaire. I wrote you yesterday, and inclosed you “ a receipt from the garde Magazin for my cargo. “ The cost of my cargo, I sent you in my letter, “ yours now mentions of receiving; but, agreeable “ to your request, you have it here inclosed.-— “ The pot and pearl-ashes, as per invoice, cost “ £ 12,012 3 0 ¿12,012 3 0

“ One barrel ashes delivered more “ than the invoice, which I received “as a barrel of beef, average 350 “ wt. at 46s. 8 1

“ New- York currency, ¿12,020 4 0 “ Charges here—paid charterage, 1000

“ Do. weighing, 25 --1,025

“ I know of no other charges here ; if any to be “ paid to the commission of commerce, you will “ please to charge them in the account. If you re-

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-x collect, you took off the foots of the invoice, when G< I was at Paris, on the letter I left with you. The 66 letter I wrote you about my owner you mention of “ having found it, and say it was inclosed in yours I 6£ received this morning, but I expect you omitted it, e£ as it has not come to hand. Please to forward it as "■ soon as possible, as it may make some alteration in <£ my affairs. You mention of the uncertainty of re~ " ceiving cash or bills for any article from America. ts I would thank you in your last to me, to mention <£ whether we may place full confidence in their paying me in good bills, or cash, agreeable to the c£ CONTRACT FOR THE qUANTITY OF ASHES SPECI6c FIED, AS THAT WAS MY PARTICULAR ORDERS ?t from Mr. Clason. You have once mentioned “ it, but your two last letters leave it doubtful in my <£ mind. I would thank you to acquaint Mr. Lylé of “ my proceedings as soon as the bills are obtained. I ££ am only waiting for the bills, and beg you to make u all dispatch in your power, and am yours.

“ (Signed) GIDEON GARDNER.’5

On the seventh of December following, Gardner addressed a letter to Lyle in these terms t

“ Cherbourg, 7th December, 1794.

66 Dear Sir,

<£ I received yours of the 15th November. I ar- <£ rived here 4th September, and proceeded to “ Paris and delivered the cargo on the contract ££ of 53; and as Mr. C. was in advance for the whole, <£ 1 arranged it for D. S. to have one-third, agreeable “to the account annexed. They are to settle

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“ WITH YOU TOR ONE-THIRD 0? WHAT YOU ARE “ ENTITLED TO, AND Mr. C. TO SETTLE WITH “ you two-thirds, after delivering the cargo, and “ the receipt presented for payment. There was a “ suspension of all payments in bills or money. I re- “ turned to Paris, and, after a long and tedious deten- “ tian, I obtained bills on Hamburgh, though not at the “ rate agreed for. They are at 90 days and the ex- <£ change 185 livres for 100 marks banco; which bills <£ I forwarded by post, to Lubert and Dumas, who, I “ understood, did your business there. I was fear- “ fui you were in England by what I had heard, or I ££ would have sent them to you. My orders to them <£ were, to negotiate the bills, and remit the money to £< B. S. & B. London, on Mr. Os. account, except ££ there should be an appearance of war. In that case ££ they are to consult you. (I was cautioned by Mr. £t C. in respect to that.J I presented a petition for “ demurrage, See. to the amount of £1250 sterl. which <£ has passed two or three offices, which I wish you to “ press hard for. I sent two bills by different posts, “ and wrote you. I have two-thirds of a cargo of ££ prize salt on freight; about £"400 sterl. freight. It “ is almost half on board, and am taking in the rest; <£ shall sail in a few days for New-York, and expect ££ to return as fast as possible with the remainder of ££ the contract. Swan is gone to America. Mr. C. <( shipped by captain S. Armour about two hundred “ tons—Major Conolly is the supercargo. They se have sold to individuals for specie. I have wrote “ B. S. Sc B- since I sent the bills, and also informed <£ them of this other cargo.

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Account of my Cargo.

To the cost in America, as per invoice, 12,020 4 0

Insurance, 5 per cent. 601 0 2

12,621 4 2

Interest on do. from 1st July, to 1st December at 6 pr. cent. 315 10 7

My Commission, 1,000

Freight, 1,200 sterl. 2,133 6 8

JVeiv- York currency, 16,070 1 5

Is, sterl. 9,039 8 4

3,200 7 10 1,600 3 io—4,800 11 8

13,840

Paper money expenses on the cargo, was 2,795 livres, 2-3 1-3.

By Sales

Of two hundred and sixty-one tons and 286 lb. at £53 per cwt. 13,840

The amount of bills I remitted is, M. Banco, 158,786 10

To this, Delard iA Co. added, “ Approved this account ; the assignats to be settled at ten, and Clason obliged to satisfy Lyle for txvo-thirds of his commission, or gratification.

(Signed)

D. S. Sc Co.”

In the month of March, 1801, Robert Lyle arrived in New- York. Clason refusing to pay the two-thirds of the fifth of the emoluments arising from the contract with the French republic, in April, 1801, Robert brought the present action against him. Shortly after which, Clason arrested Robert and John Lyle in the cross-suit, for a very considerable sum of money,

In December, 1801, both causes were, by order of court, referred.

On the 10th of March following, the attorney for Robert Lyle submitted the following proposition to the attorney of Clason„

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“ As the suit instituted, by Mr. Clason against Mr. ” Lyle, does not include any claim for damages, aris- “ ing from the misconduct of the latter, and more par- <£ ticularly, for damages like those claimed on the bu£r siness of the Hare, it would be proper (lest these t£ should be made the subject of a future suit, on the “ part of Mr. Clason, on the ground of an objection t£ to the report on the part of Mr. Lyle) that all claims ££ and controversies of this nature be included in the “ submission already made, which, in a legal point of ££ view, extends only to the subject matter in differ-C£ ence, in the particular suits referred.

££ (Signed) THOS. L. OGDEN, for Lyles”

To this the attorney of Clason, subjoined the following memorandum:

£t It is understood that the demands for damages Si above mentioned, and all claims and demands on <£ both sides, founded on contract, express or implied, <£ are submitted.” To this addition, the attornies of both parties added their signatures, and the consent of the litigants themselves were given in these words, <£ We agree to the above, and that all the accounts, ££ as already exhibited, shall be reported on by the res£ ferees in these causes.

(Signed)

“I. CLASON,

££ ROBT. LYLE.”

On the 30th December, the deposition of Gardner was taken in behalf of Clason; in which, among other things, Gardner swore, that his letter of instruc

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ixons contained the only oi'ders he had from Clason $ that Delard if Co. informed him of their contract with the French government, and he contracted with them ; that they informed him the contract was in Lyle's name, he being a neuter; that they informed him Lyle was to have a gratification, but what it was he, Gardner, never knew ; thinking, and,being fully assui'ed in his own mind, that it would apply to the benefit of Clason, Lyle being his salaried agent, which consideration induced him, Gardner, to consent to Clason's being accountable to Lyle for two-thirds of the said gratification, which he expected would be paid by the salary at which Lyle was retained.

On the 22d of June, the referees made their report in both causes, and in each, reported in favour of the defendants.

On the 20th of July, the report in the cross-suit by Clason, was, on motion in court, duly confirmed. Iim mediately after which, on the 23d of the same month, Robert Lyle, in order to set aside the report in favour .of Clason, made an affidavit, which stated, that the suit instituted by him in April, 1801, was to recover money had and received by Clason to the deponent’s use ; that it was referred, and at the meeting of the referees, the deponent, as the basis of his claim, did prove, and make appear, &c. (mentioning the contract and circumstances, and letters detailed in the beginning of the case) that the net profits on the sales made by Gardner under the contract, were £4,800 11 8 sterling; that the fifth, to which the deponent was entitled, in pursuance of the engagements mack

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with him, was £960 2 4, of which, by an original account of Delard, Swan Co. produced to the referees, it xvas proved Delard, Swan ts1 Cb. had paid their one-third, according to the agreement with Gardner ; but no payment was shown, or pretended to have been made of the other two-thirds of the fifth, nor was there before the referees, any set-off, or counter claim established against the defendant; that the deposition of Gardner (before shortly stated) was shown to the referees, and Gardner himself personally examined: that he then testified he was, previously to his departure from America, with the said cargo, per the ship called the Joseph, made acquainted xvith the existence of the said contract, by the defendant, and with the terms or price therein stipulated; that he .did not consider himself bound.by the instructions of the defendant, to deliver his cargo under the contract, nor restricted from doing so, but at liberty to act according to his discretion; that his motives for inquiring from Delard is’ Co. respecting the reliance to be placed on punctual payment, and also for alleging this to be done at the desire of the defendant, was to hold out the idea of future shipments, and so insure the payment of what had been delivered, but not settled for; that it was made to appear without any denial, that the defendant had only received his two-thirds of the profit on the contract aforesaid; that the report had, notwithstanding, been made in favour of the defendant, under an idea that Gardner had no authority to bind Clason to the payment of any thing to the deponent; and that Clason had altered the deposition of Gardner, after it was made, and before presented to the referees, without communicating the alteration to them.

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On the 6th of October, 1802, Clason made an affidavit to vacate the report in favour of the Lyles, in which he set forth the instituting the two suits ; their being referred ; the reports made in favour of the respective- defendants, and that they were duly filed, on the first day of July term last past, so that judgment would, according to the usual course of the court, be absolute, the then term ; that the reports, according to his information and belief, were drawn up by agreement between the counsel in both suits, that each should draw the report in favour of his own client; that the deponent’s attorney was, on the 23d of July last, served with a copy of an affidavit, accompanied with a notice of moving upon it to set aside the report in favour of the deponent; that the matters contained in the affidavit, went to the merits of the case, respecting which, on account of sickness in the deponent’s family, and absence from New-York, the deponent could not make any explanations to his counsel; that he acquiesced in the report against himself, from a conviction nothing could be obtained from Lyle, and, therefore, no report could operate more favourably to the interest of the defendant ; that the known inability of Lyle to pay* was one reason why the referees were less particular in examining the deponent’s claims against him, than they otherwise would have been, deeming it unimportant ; that the two reports were made, and intended by the referees as set-offs the one against the otherf and to this end, they instructed counsel to prepare them accordingly ; that, among other charges against Lyle, the deponent gave in evidence, an account rendered by Lyle, in which he acknowledged having in his hands a balance of 244,246 livres in assignats,.

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amounting, at the then rate of exchange, to 4,477 dollars, and that assignats were then never kept on hand, but always converted into property, to avoid depreciation; that since the account so rendered, the de| anent never had any further money or mercantile transactions with the Lyles, and that Lyle nú ther accounted for, nor made any set-off against the said assignats, but the same were totally unaccounted for; that the deponent, as soon as the sickness of his family permitted, consulted respecting measures to be taken about opposing the motion, to set aside the report in his favour, but there was not time enough left in the term to do it; that but for the application of Lyle to set aside the report in favour of the defendant, he should never have applied to set aside that in favour of Lyle, for the insolvency of Lyle made it of no consequence.

The notice of motion with which this affidavit was accompanied, was repeated on the 7th of January■« 1803.

To oppose this, Robert Lyle made, on the 14th of January, 1803, an affidavit, stating, that he, and his brother John, the other defendant, acted, in the )rear 1795, as agents for Clason, in which capacity they had received various large sums of money, the whole of which had been faithfully accounted for; that the suit against Clason was for money due individually to the defendant, on another concern, and for damages for libellous letters and slanders published against him by Clason ; that he and his brother were arrested, as before mentioned, and the two causes referred; that in the suit against the deponent and his brother, (the

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declaration on which was for goods sold with the ° usual money counts only) Clason produced an account with charges, against the deponent and his brother, for breach of orders and neglect of duty, to a very .large amount; that on asking for some evidence, by which it might appear, those charges were included in the submission, the agreement of the 10th March, 1802, was produced; that the same was intended merely to extend the powers of the referees to claims of the nature of those mentioned in, and warranted by, the declarations to which the deponent had confined himself; that his, and his brother’s faithful agency, and due accounting for all sums of money, were fully proved ; that in the cross:suit against the deponent and his brother, the referees made their report on a conviction nothing was due to Clason, and not from, any regard to the deponent’s insolvency or circumstances, as he was, by the referees themselves, personally informed; that the deponent proved, to the satisfaction of the referees, that the value of the " assignats mentioned in Clason’s affidavit, was, at the time specified, only /278 2 9, and not 84,477 ; that they were not then usually converted into property, but held by many persons in hopes of their rising, and that the said assignats were not only not made use of by the deponent, or kept in his hands, but had, from the time of their first reception, been paid over by him to the correspondents of Clason, Lubbert, Freres & Elis, of Bordeaux, BY WHOM THEY WERE CONVERTED INTO SPECIE, FOR THE USE OF ClASON, AND ACCOUNTED for with Gardner, when acting as Clason’s agent ; that, so far from the acquiescence of

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Clason in the report against him, for the reasons he had assigned, -he had, after it was made, purchased protested bills, on which the deponent’s name was as an indorsor, and had commenced suits against the deponent upon them, in order, as he believed, to create a set-off against the verdict the deponent might ultimately obtain.

After some struggle by Hamilton, on the part of Lyle, to discriminate the two suits, the court was pleased to order the arguments to set aside the several reports to come on together.

Hamilton, for Lyle,

after stating the circumstances, and commenting on them, and the affidavits of Clason and Gardner, observed, that it was very singular Gardner, without any knowledge of the contract of Delard, Swan & Co. with the French republic, or of Lyle’s intent, should deliver exactly under that contract, and write a letter acknowledging the very interest Lyle claimed under it, and that Clason should pay him what he was thus entitled to. Gardner, without knowing the contract, goes further; he asks Delard Co. if the French government will be punctual in paying, and this,, he adds, Clason desired him to inquire about. Clason too, ratifies the engagement of Delard Co. and Gardner, with Lyle, by adjusting the account with Delard &? Co. and receiving under that account the two-thirds, by the very express terms of it, charged with the payment of the two-thirds of Lyle’s fifth. To argue on the assertions of Gardner, would be really superfluous. The referees must have thought Gardner had no right to bind Clason. This idea is clearly repugnant

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vo every principle of law. He that entrusts another with general powers, must abide the result of his agent’s conduct. Therefore, though the report in favour of Lyle, may and ought to stand, that in favour of Clcison ought to be set aside.

Hopkins and Troup, contra.

In making the reports in these causes, the referees were actuated bv a wish to make the parties even, and leave them just as they were found. For this purpose, the report in our cause, was intended as a set-off to the other, and to effect this object, counsel were desired to frame the reports in such a manner as might best obtain the desired end. The various facts appear in the affidavits before the court; but it is material to state, that The party who first made the application to disturb these reports, has not presented any original agreement, on which his suit is founded. Delard, Sxvan 6? Co. made a contract with the French government, for a certain quantity of pot and pearl-ashes : as these articles enter into the composition of gunpowder, it was necessary to have a neutral name in the business. It is difficult to say, what ought to be the true relative compensation for the protection a neutral character v-md afford ; but it is to be observed, that Delard Es? Co. were the real contractors; Lyle a mere nominis umbra: for this, however, he says he is to have one full fifih, one-third of it to be paid by De ■lard, Sxvan £s? Co. the other two-thirds b) Clason.— These terms, it is alleged, were stipulated by a formal contr yet this contract, which Lyle must have had, is never produced; on the contrary, inste ad of relying upon he rests on a letter received, from Gardner. Li addition to the inference to be

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drawn from this fact, it appears, that at the very time when this pretended contract was made, Lyle was in Europe, under an annual allowance from Clason, and actually his salaried agent, receiving wages for every service performed. A doubt has been entertained, how far the court can, under the existing circumstances, with propriety set aside the report in favour of Clason: but, surely, whenever they clearly perceive that the referees have proceeded on a mistake, either of law or fact, this tribunal will always interfere. If the court will set aside an award, they will, on the same principles, vacate a report; and, whatever argument will induce them to do it in one of the now causes, will have equal force in the other ; for if the referees have been mistaken in their endeavours to create mutual set-offs, both reports will be set aside ; or, on the other hand, if they have acted properly, both will be confirmed; for the court will not, unnecessarily, do away what the referees have done. In making their detertnination, they considered that the power to sell, and the power to give away profits, were two things : to this latter, it cannot be contended, that the authority of an agent or a factor can extend. There is no question about an agent’s right over the property passed to him, but he cannot enter into collateral engagements : he. may sell and warrant a title ; but not give away the property. If he may, in 'any degree, do this, he may go on indefinitely, and make away with the whole. He may go on making contracts ruinous to his employer, and contrary to the purposes of his delegation. Under a power to sell, if he should be allowed even to exchange, can he be authorised to pay a difference ? The boundary of his power to bind, must

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be connected with that of his authority to sell; it must be confined to that, and will not warrant him to give away profits ; tó pay another sum of money on another account than that of the sale. The point turns on whether Gardner had a competent authority to bind Clason, to pay two-thirds of a fifth of the profits. It was derived from the letter of instructions. That letter delegates only a general power. From the exercise of such a power, the claim cannot be supposed. That a factor may sell by a broker, and give a commission, if customary, is not contested; but it is contested, that a factor or agent, having only a. general authority to sell, can give away a substantive part of the merchandize when it was sold ; that he can do so, there is not a dictum in the books. It would be, in fact, to enable him to dispose of a portion of the property he is entrusted to vend. It would give rise to the most serious consequences; a frau - dulent"collusion would completely destroy the interests of the principal, by enabling to constitute a sale regular in its form,, the precise mode of which, could not be easily foreseen. The intention of Clason’s agent must be taken into "consideration, and the motives on which he proceeded, permitted to explain how he meant to bind his principal. Gardner never knew what the gratification to be paid Lyle actually Was. The inducement he had to consent to any, was, that he deemed the amount immaterial; for as Lyle was in the service of Clason, at a fixed salary, Gard ner naturally concluded all Lyle’s labour would accrue to Clason. On the principles of natural justice, the demand cannot be substantiated. He lends his name to Delard, it being necessary to make use of n

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neuter. The douceur must certainly be according to the situation of the party. The letter to Clason, containing the terms of the contract, does not state the sum to be- paid. It is obvious, therefore, that this was never intended; It was considered as too trifling to specify.

Gardner knew,

when he left America, that Lyle was a salaried agent. This is not a case of good faith between an agent, and a person totally a stranger, and, therefore, the principal called on to pay ; but we are called upon, on the strength of a little memorandum touched into the foot of an account. It is not to be forgotten that the referees were merchants, and well knew the course of trade and business, when the transactions took place, as well as the rights of an agent at a fixed annual allowance. The claim too, goes by the express name of a gratification; and who ever heard of a partnership share (which this in fact is)- ever being known by the appellation of a gratifica- ■ tian t When was 600/. sterling ever considered as a gratification for a person at a salary of 150/. per annum, New; York currency ? The referees might, therefore, have justly ejected the claim. No inference can be drawn from Gardner's letter, speaking of a contract: he might have sailed on another. But it was not the mere matter of the contract that was referred ; subsequent matters were added, not included in the two causes this was by agreement of the parties, and how can the court say the full claim on the contract has hot been allowed, when it might have been counterbalanced by damages and misconduct in the matter of the Hare ? This, therefore, being an application to the equitable jurisdiction of the

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¡court, they will so mould and blend the two causes as will best answer the ends of justice; and, if in the suit by Lylet the report be set aside, the court will do it on terms, and vacate the report hi that against him.

Clason

declares be never heard what Lyle's compensation was, till after the suit was brought. But can the court say, this particular claim ought not to be disallowed ? After the rules to refer, other matters were added and blended ; all contracts, “ express or impliedwere submitted. It cannot be said, there were not other claims to extinguish this demand of two-thirds of the fifth. It might have been admitted, and liquidated by a counter claim. Referees and arbitrators may so consider the subject matter before them, as will best answer the ends of justice : they may take into view matters both of law and of fact; perform the offices of judges and jurors, and are entitled to found their decision either on law, or principles of general equity. The whole of this was delegated to them, and they have determined, on a view of all matters in controversy blended together in one mass, all the objects in these two causes, even in that against both the Lyles, as consolidated before them , Whether they have been perfectly accurate in thus beholding them, is immaterial, if they did so consider them, have acted under that idea, and have attained the real ends of justice, though, perhaps, by extraordinary means. It was evidently the wish of the parties to set all controversies between them fully at rest, and this has been accomplished. The court, therefore, will never say, that one report shall be confirmed, arid the other set aside. The consideration

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of the report in the suit by Clason5 might have influenced in the making up that, in the action against him. That it did so, is evident, because the reports were intended as mutual set-offs. Whether this could be supported on strict legal reasoning, had been doubted: but the spirit of the case in 8 D. & E. might, perhaps, fully warrant the conduct of the referees. It may be a question, also, how far Gardner could give such an interest, as might, perhaps, create a partnership between Lyle and Clason.

Harison and Hamilton, in reply.

If, in cases of full and fair investigation before juries, this court will interpose, when a verdict has been rendered on an evident mistake of the law, they certainly will do so in the case of a report made by referees, however appointed. That this reasoning applies to the suit of Lyle v. Clason is manifest, and it will, therefore, be sent for further examination. With respect to the" contract made between Lyle, and Gardner, the agent of Clason, it is for the court to determine whether it be obligatory or not. The affidavits on the part qf Clason, do not state that he was ignorant of the contract with the French government, but of the claim of Lyle. It appears from Lyle's deposition, and is not controverted, that in March, 1794, letters were written by Lyle and Swan, informing Clason of the contract; of Lyle's right, and that he (Clason) might share, if he thought proper. The letters were produced, and that they were received, Clason's conscience would not let him negative. There was a stipulation to compensate, with a share of . the actual profits, for the use of the neutral name of Lyle ; when these profits were ascertained, the right of Lyle at

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iached. There is, to be sure, no express recognition by Clason of the contract, but in the September following the date of Lyle’s letter, Gardner arrives in France with exactly such a cargo as the contract demanded. Are there not circumstances enough, to think he went there for the purpose of acting under it ? But even allowing there are not, does not the letter of instructions substitute Gardner as owner of the property he carried, and invest him with all Clason’s power over it ? He is to exercise his judgment; do his best; sell for French brandy; sell to the French government, &c. he had, therefore, a right to make any contract under the words of the letter. He arrives in France with a power to dispose; he finds Delardpos- . sessed of a contract, in the name oí Lyle, under which, the power to dispose may be exercised with great advantage. He does exercise it, receives the emolument, settles with Delard &? Co. but refuses to do so with us. The inquiry then is, had Gardner a power, and has he exercised it ? That he had and has, no doubt can be entertained ; and as little, that it was under our contract; for the affidavit subsequently made by Gardner, does not deny, but admits the fact. He says, however, that he knew not what the gratification was: this is extraordinary: he seems to have forgotten his own letter after á very few months; and though that does not specify the exact sum, the two-thirds for which he mentions Clason is to settle, it affords an internal evidence that he did know it, much stronger than his own assertion to the contrary. Gardner’s letter of the 7th December, 1794, particularizes two-thirds, and gives an account of the sales. Allowing, however, Gardner not to be apprised of the

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exact sum,-as Lyle’s right was ascertained and perfected under the contract to which Gardner consented, acceding to the payment of two-thirds by Clason, it follows Clason must be bound. The rule is, that he who places confidence, shall suffer by the abuse of that confidence; Clason, therefore, and not Lyle, is to be the loser by Gardner’s actions. It is extraordinary that Clason should have remained ignorant of the amount of Lyle’s claim, four years after Gardner’s return and rendering an account of his transactions. If Gardner then, having an authority to bind Clason, did so, and Clason has received the benefit of that trans- • action, Lyle’s right is perfect. The assertion of his being a salaried agent, does not affect the claim. His time of service expired in September. Beyond that, Clason himself, allows no salary, and Gardner’s letter i s dated in December. Gardner himself acknowledges Lyle’s right, by telling Delard to pay one-third ofit. Had it been otherwise, Gardner would have said, you are not to pay the third of the fifth to Lyle, but to Clason, for whosé benefit Lyle is acting. There is a further proof in the letter to Lyle. Gardner there says, “ Mr. Clason is to settle with you for.two- , “ thirds.” Here then is a clear established right in Lyle to receive from Clason, two-thirds of the fifth of the whole profits. If so, the arbitrators have been guilty of a mistake, in point of law, in considering Gardner unauthorised to bind Clason, and this the court will assuredly set right. There is also another ■ ground on which they have clearly erred; for if they have blended the reports in the two causes, or made one enter into the composition of the other, they arc manifestly wrong. There is no evidence of any thing

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against Lyle’s right, but the demands in the cause against him and his brother. Though both causes were referred, the referees have not any right to blend matter extraneous to the respective suit. Robert Lyle’s action is for his own separate account. That of Clason against Robert and John Ijyle, is against the partnership, and the one cannot be set off against the other, being in different rights. This is very wide from the case of a surviving partner, where the rights and duties centre in one person. The agreement does not alter this, for it was merely to allow of such matters as were admissible against the same parties, though not specifically proceeded for; to settle all disputes for which actions might be instituted against the respective defendants; to allow of damages arising from breach of contracts, express or implied, by the Ijyles, to be settled under the reference of the suit against them, in which counts were used not applicable to actions of damages, but never to permit one suit to be set off against the other, or make Robert Lyle give up the benefit of his claim against Clason. They did not even take it into consideration, as they considered it not due; the report, therefore, in favour of Robert and John Lyle, may well be suffered to remain, and that in favour of Clason be set aside; for the amount of the profits claimed from him not being taken into consideration in the accounts by the referees, now remain unsettled. If, therefore, without including this demand, Clason has not any demand against Robert and John Lyle, the report does not prevent Robert from having a demand against Clason. Besides, it is evident the contract must have been known to Clason and Gardner, by the latter’s express

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ing an intention of returning with the residue. The mentioning it in the letter of instructions, was to avoid the risk of capture and condemnation; fates that were sure to attend a cargo of a contraband nature, going under an avowed contract with the French government. The receipt by Clason, of the proceeds of the cargo, is a ratification of every contract under which it was made, and no disavowal of Gardner's authority can be permitted. Clason enjoys the benefit, and if any charges do accompany the agreement, it is to be taken cum onere. ' The allowance of the account by Delard, Swan, &? Co. is conclusive on the terms.

delivered the judgment of the court. These actions were referred under rules of court to three referees, who have reported in each against the respective plaintiffs, declaring nothing due on either side. Motions are now made to set aside the several awards.

In the first cause, in which Lyle is plaintiff, the application is founded on a presumption that the referees have been mistaken in point of law. That they have either rejected a contract entered into by the defendant’s ship-master and consignee, as not obligatory on his principal, or have set off the balances found for the plaintiffs, in the respective causes against each other.

To this the defendant answers, that he was not bound by the engagement of his ship-master, who was also his consignee, and that if the referees have

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made such off-set, they were justified on principles of ’aw, and by an agreement entered into between the iespective attornies.

As far as the facts can be collected from affidavits and documents furnished the court, they are these : That the Lyles being engaged in business in France, were charged with some commercial concerns of Cla son, on which he claims a balance of account, and on which they deny any thing to be due. That Robert Lyle, while in France, was employed by the house of Delard, Swan Ss? Co. there established in business to negotiate a contract, for the supply of certain quantities of pot and pearl-ashes to the French government, which he effected, and for which they were to allow him one-fifth of the profits. That the com-pony, as well as Robert Lyle, wrote to Mr. Clason in March, 1794, acquainting him with their contract, and proposing to him to make shipments thereon. That in September, a vessel called the Joseph, belonging to the plaintiff, arrived in France loaded with ashes, consigned to Gideon Gardner, the master, who had general instructions to sell to the government, or to individuals, at his election. That Gardner, after making inquiries as to the government’s punctuality, agrees with Delard, Swan &? Co. to turn in his cargo under their contract, which is accordingly done, and neats a profit of £6,800 11 8 sterling; whereof Clason received two-thirds in consideration of his having made the advances, and the house of Delard, Swan &? Co. one-third. On the adjustment of this account, it appears that the company and Clason were to account to Robert Lyle for his one-fifth, according

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to the proportions of profits by them respectively received.

Captain Gardner’s powers being discretionary, he was perfectly justifiable in making the disposition he did of the cargo entrusted to him, and even if he was not, it does not appear that Mr. Clason ever denied that transaction his sanction, but that on the contrary, he has received by remittances to Bird, Savage Bird, of London, the proceeds of the cargo, including his proportion of the profits. Under these circumstances, there can be no doubt that Captain Gardner, having turned in his cargo under the contract, bound Mr. Clason to the fulfilment of the terms of that eon-tract; and the latter, having received the full two-thirds of the profits of the adventure, under the stipulation made by his agent, that he should account to Lyle for two-thirds of his douceur, or whatever else it may be called, (for names will not alter the essential quality of the thing) he is bound to perform such stipulation.

If, therefore, the referees have not admitted this claim, they have erred as to the law, and the award ought to be set aside.

If, on the contrary, they have admitted it, then they must have allowed a balance found due to Clason in the other suit, as a set-off against it. This also is incorrect; for the suits are not between the same parties, and the partnership funds should have been first appropriated to the discharge of the partnership debts. The agreement between the attornies, does mot authorise such set-off. Its only object, is the ad

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mission of certain demands which would not fall within any of the counts in the respective declarations, In order to avoid further litigation.

The award, therefore, in each suit, ought, in my opinion, to be set aside. The one against Clason, for the reasons above mentioned, and the one in which he is plaintiff, because there is a probability that the referees found a balance there due to him, which he would otherwise lose the benefit of. The judgment of the court is, that both awards be set aside,