Majority
p. 290Muldon and Montgomery against Whitlock, impleaded with Jenkins and others.
Headnote
M and B sold StOT6S fop ship, to F and S, the ship’s husbands, (on a credit of 4 with W^ndT were owners an^B,ink'lleir original entry charged these the'owners! 6,y name. A few sale, they rendered two bills to F and S, charging them only, and about 2 months after the sale, took the sole note of F and S, at an extended credit of 8 months, giving a receipt for the note, as in full fop the stores. This note not being paid, and F and S becoming insolvent; held, that the other owners were not thereby discharged, but were liable, in assumpsit, for the original consideration.Being originally liable, the subsequent delivery of. the bills charging the ship’s husbands-alone, did not exonerate the other owners ;
Nor were they discharged by taking the note ;
Which, being for a precedent debt, is not a satisfaction, until actually paid; unless expressly. agreed to be received as payment.
The receipt of the note, in full, &c. was not evidence of such an agreement.
It makes no difference, in such a case, whether the plaintiffs knew that there were other owners, at the time of the sale, or not.
But if, in consequence of such receipt being given, the other owners had allowed the note, in account with the ship’s husbands, or wei e otherwise injured in their dealings with them, upon the credit of the receipt, this would have worked their discharge.
El semble, that such prejudice should he shewn affirmatively by the defendant, and will
not be intended.
The general duty of the ship’s husband considered.
Assumpsit, for stores, furnished by the plaintiffs, for the J ± ship Cadmus, whereof, it was admitted, the defendants, Fred erick Jenkins and Matthew Jenkins, (trading under the firm . ’ x ° of Frederick Jenkins Son) and the other defendants, Wm. Whitlock, jun. and Frederick William Jenkins, (trading un(for the firm of Whitlock <£• Jenkins) were owners. The cause was tried before his honour the late Chief Justice gpencer at the sittings in New-Yorh, on the Í5ih June, 1821. John A. Seaman, a witness for the plaintiffs, testified, that he was a clerk to the plaintiffs, in Nov. 1818; that the stores, jn question, were ordered by Frederick Jenkins k Son, and -were delivered on hoard the ship, on the 20th day of No
p. 291
vernber, 1818, amounting to $2040,71 ; that the stores were sold at a credit of 4 months, the usual credit of the plaintiffs ; and were charged, in the plaintiffs’ books, to the ship Cadmus, for acc. of Frederick Jenkins &i Son, and Whitlock & Jenkins; that this was the original entry made by Montgomery, at the time, and was copied from the Captain’s list; that two bills, of the goods in question, were afterwards rendered by the plaintiffs, in the hand writing of one of them, to Frederick Jenkins & Son, headed,as follows: ‘‘ Novr. 20, 1818, Ship Cadmus, acc. Messrs. Frederick Jenkins & Son, to Muldon and Montgomery, Dr.” that, on the 12th January, 1819, the plaintiffs took from Frederick Jenkins fy Son, their note, dated 20th November, 1818, payable in twelve months from the date, for the amount of the stores, including eight months interest thereon, arid gave a receipt,' in the words and figures following : “ Reed. New-York, 12th Jany. 1819, of Messrs. Frederick Jenkins & Son, their note, of 20th Novr. last, at twelve months, for two thousand one hundred and thirty five dolls. in. full for stores for ship Cadmus.” (Signed) “ Muldon & Montgomery.” The same witness also proved a letter, (then produced) to be in the hand writing of Muldon, one of the plaintiffs, which letter is in these words: u New-Yor, 25th June, 1819. F. Jenkins, Esqr. Dr. Sir, From the suggestion of a mutual friend of ours, I’m induced to address you on the subject of the accounts between us. As respects the stores of the Cadmus, the amount of which is large, they were put up at the usual credit. And, for the accommodation of your house, took your note, with eight months interest, for the amt. which, in the opinion of us, at least, should be considered confidential. The stores put up for the Louisa was due the 4th inst. which, had we taken a note for, would- have been paid for also. Under these circumstances, I would wish your opinion, as the loss to us, with those already sustained, will be insupportable. If, in your opinion, they ought to come within that peal, you will much oblige me by making it known to me and the ass’s, by return of mail. Self obliges me to make this application, as I cannot see the difference it will make in the arrangement of
p. 292now moved for a new trial( -on the following grounds : 1. That it ought to have been left to the jury, to find ' whether or not the credit was originally given, or was subs "s.equently agreed to be given, by the plaintiffs, exclusively to Frederick Jenkins & Son, it being purely a question of fact, under all the circumstances.
y°Ur a^airs generally. You must be the best judge, howev-er. Withbest wishes for you, am, Dear Sir, sincerely your. friend, M. Miildon.’1'1 David W. Raymer, another witness. Í01’ the plaintiffs, testified, that he was a clerk to the house of Frederick Jenkins & Son, in 1818 and 1819 ; that Whit-lock & Jenkins were a separate and distinct house, doing business on their own account; that Frederick Jenkins & Son were ship’s husbands for the Cadmus ; that, within a few days after the stores were furnished, Frederick Jenkins &" Son rendered to Whitlock & Jenkins an account of the disbursements of the ship, in which was included the am ount of the stores in question, but which account was never settled between Jenkins and Son and Whitlock and Jenkins, nor any payment made by Whitlock and Jenkins to Jenkins & Son, on account of the stores ; that Frederick Jenkins & Son failed in June, 1819. William, Scott, a witness for the defendants, testified, that the plaintiffs admitted to him, that they knew Whitlock & Jenkins to be part owners of the Cadmus, when the stores were furnished.
Upon this evidence, the counsel of the defendants, Whit-lock & Jenkins, insisted, first, that the credit was originally given exclusively to Frederick Jenkins & Son : but, secondly, that, if it were otherwise, yet, they were discharged by. the acts of the plaintiffs, in transferring the charge to that house, individually, and dealing with them for an extension of credit, and taking their note, and giving the receipt. His-' honour the late Chief Justice, thought •otherwise, and directed the jury to find for the plaintiffs; and the jury, accordingly, under that direction, found a verdict for the plaintiffs, for -$2381,93, being the amount of the ■stores, with interest, after the expiration of four months.
W. Slosson, for the defendants,
p. 2932. That the evidence clearly shews an original election, by the plaintiffs, to take F. Jenkins & Son, the ship’s husbands, as their sole debtor ; and that the credit was given exclusively to them. 3. But, if not, that the subsequent acts of the plaintiffs, in transferring to F. Jenkins & Son the sole charge, taking their note, extending the credit, and giving the receipt, was an entire discharge of Whitlock & Jenkins, the other part owners. He said, that, in general, although more than one be interested in the purchase of articles, yet the creditor may elect to take a less number responsible- So, though all be originally liable, they maybe discharged by accepting the security of part, and acquitting the others, He thought one of these points, at least, fully established by the evidence. Before the final close of the transaction, the plaintiffs made thei election, to take F. Jenkins & Son, their sole debtors. True, the first entry was against both houses ; but with full knowledge that Whitlock <$.- Jenkins are equally interested, they afterwards make out and deliver two bills of parcels, charging Frederick Jenkins. Son, only. From this, the inference is a fair one, that there was an original agreement among all parties, that they alone should be liable. And what strengthens the inference is, that the act of rendering the bill is followed up by taking their sole note for the debt at twelve months. A farther confirmation is found in the plaintiffs’ letter. Nothing is there even hinted of Whitlock Jenkins'1 joint liability ; blit it is treated as a confidential debt, due from F. Jenkins if.- Son alone. And the pressing manner in which payment is urged, plainly indicates that the plaintiffs had no idea of any other resource for payment. Schermerhorn v. Loines, ( 7 John. 311 ) will doubtless be relied on as an authority against us ; but that case is distinguishable from the present, in several respects. The charge there was general against the owners, and no account was rendered, charging the ship’s husband separately. True, his single note was taken for the debt, and a short extension pf credit granted ; but there was evidently no election to make him the sole debtor. There could not have beep
p. 294But suppose here was an original liability on the part of all these partners ; Whitlock Jenkins are discharged, by •the subsequent conduct of the plaintiffs. In Evans v. Drummond, (4 Esp. Rep. 89) taking the note of one partner for a partnership debt, was holden to discharge the other. The same thing was decided by this Court, in Arnold v. Camp, ( 12 John. 409 .) In determining the latter ease, the Court refer to Witherby v. Mann, ( 11 John. 518 ,) where a promissory note was holden a satisfaction even for a judgment. Against this, Smith et al. v. Rogers, ( 17 John. 340 ,) may be cited. A second note was there holden not to be a discharge of the first. But the ground taken by the Court, in that case, is the very ground for which we contend here. They put the discharge on the ground of understanding and intention between the parties. This supports our defence. The plaintiffs say to F. Jenkins $• Son, “ For your accommodation, we extend the credit front four to twelve months.” This is saying to Whitlock Jenkins, “we have discharged you. Go on and treat with F. Jenkins Son, accordingly.” Its no.t appearing' that Whitlock Jenkins have sustained losses in consequence of this language, can make no difference. They have been lulled in
any such election; for, both at the time of the supplies furnished and the note taken, the plaintiff was ignorant,who were interested as owners. Besides, the charge in the bill of parcels ^eing general, without naming the owners, shews clearly that they intended to hold whoever should turn out ultimately to be liable as owners. That this is the view which the Court took of that case, is the more evident, from Reed v. White, (5 Esp. Rep. 122,) which is referred to in giving their opinion. Where credit is given to the factor alone, knowing the principal, it is holden an election to take the former as the sole debtor, and works the discharge of the principal. (Patterson v. Gandasiqui, 15 East, 62. Addison v. The same, 4 Taunt. 574. Seymour v. Pychlau, 1 Barnw. & Alders. 18, per Abbott, J.) These cases are strikingly analogous to the present. F. Jenkins Son are the agents of supply : Whitlock Jenkins are the principals, who are discharged by the election.
p. 295to a false security and confidence in their agents ; and losses will be intended. They are the natural consequence of the relation these parties bone to each other. It will even be intended, that Whitlock & Jenkins have settled with their agents and partners, giving credit for this very note, as an actual payment. But, whether there be loss or not, can make no difference. The intention is a plain one. But at all events, whether we are wrong or right in our conclusions, here is matter of evidence, which should have been left to the jury, from which to pronounce upon the question, to whom the original credit was given, or whether it was discharged. The account first rendered, charges the stores against all the defendants. In the second and third, they are charged to “ Ship Cadmus, acc. Messrs. Frederick Jenkins & Son,” there being four persons joint owners. It would not be a forced construction, to say, that even the latter charge embraces all the defendants, in terms. The charge to Ship Cadmus, certainly negatives the idea that the plaintiffs looked to F. Jenkins & Son alone. The whole four defandants have had the full benefit of these supplies : Whitlock & Jenkins have received no injury from any thing which the plaintiffs have done. Yet they have the conscience to resist payment, and ask for presumption and intendment in their favour. Here was clearly an antecedent, existing liability. Suppose the note had been given for the' debt by a third person ; it would have been no satisfaction, till actual payment. Before this, it is “ no more than blank paper,” as Ld. Kenyon said, in relation to the case supposed. Is giving this note by F. Jenkins Son, doing more, or placing the question on a different footing, than if it had been the note of a stranger ? Had a bill been taken, and dishonoured, it might have been returned and a suit brought immediately •; because there is a condition in such a case, that the bill shall be honoured. Whitlock & Jenkins have been led into no error. An account of this transaction was early rendered to them by F. Jenkins & Son. If,.in the very first'
J. Wells, contra.
p. 296instance, the note had been taken, the receipt given, and ait allowance made in account between the owners, the case5 would have been widely different. There would then have keen a loss' arising from our own act. But the relative situation of the parties is not altered in the least. The first ground taken was not made á point at the trial,- and cannot he heard here. The Court are asked to send this cause to the jury, although no such request was made at the sittings. This is a mere after thought. The 3d and 4th points alone were raised, and the whole is, in truth, a mere question of law. Wright v. Hunter, (1 East, 20,) is in point to establish the defendants’ liability; and in Scottin v. Stanley et al. ( 1 Dall. 129 ,) a case similar to this, thé’ owners were holdenliable, though they had settled with, and allowed payment in account to ship’s husband. And the only difference between Schermerho'rn v.- Homes and this case, is, that the plaintiff did not know, at the time of the itransaction, that the defendant was the owner. But- that case did not turn upon knowledge ; nor is there any reason-why it should. A note is not, like a bond, a higher security, merging a simple contract debt. It is given merely to secure and facilitate payment. In no case like the present, therefore, does it operate as a discharge, unless the defendants have been injured by a fraud arising from the means put into the power of the ship’s husband by the plaintiff. This is the/ principle of Reed v. White, (5 Esp. 122.) And it is mention-' ed, in this point of view, by Schermerhorn v. Loines, ( 7 John. 311 .) Arnold v. Camp, is also an authority directly against the defendants, though cited on their side. In that case, the plaintiff knew of the defendant’s liability from the beginning ; but he enabled the partner to commit a fraud upon the defendant. I have not seen the case cited from 4th Esp. hut I presume this will be found to turn upon the same principle. The principle is. precisely the same as that which pronounces the settlement with an agent, who is thereby enabled to impose upon his principal, conclusive upon the creditor. This rule was laid down, though not acted upon, in Wyatt v. Hertford, (3 East, 147,) and was applied by this Court, is
p. 297Cheever v. Smith, ( 15 John. 276 .) The letter, whatever the plaintiffs may have supposed, could not alter the truth of the case. It is merely proof that they believed the defendants discharged ; but this does not make it so. The cases of Toby v. Barber, ( 5 John. Rep. 68 ;) Murray v. Governeur, (2 John. Cas. 438 ;) Herring v. Sanger, (3 id. 71 ;) Johnson v. Weed, ( 9 John. 310 ;) Putnam v. Lewis, ( 8 John. 389 ;) Holmes & Drake v. D‘Camp, ( 1 John. 34 ;) Pintard v. Tackington, (10 id. 104 ;) The People v. Howell, ( 4 John. 296 ;) Whitbeck v. Van Ness, (11 id. 409 :) Hoare v. Clute, (15 id. 224 ;) Breed v. Cook and Caldwell, (id. 241 ;) Burdick v. Green, (id. 247 ;) Pierce & Pierce v. Drake, (id. 475,)[1] shew how far a note is to be considered payment. This transaction was in the ordinary course of business with the ship’s husband, whose duty the Court will find pointed out in 1 Livermore on Agency, 72. He is the organ between the seller and purchaser of stores for the ship, and is, in this respect, employed in an agency or stewardship. This relation and his situation about the ship, causes the dealing to be with him in the first instance. Thus, the owners' are to be considered, originally, liable ; and it would be strange, that, because the ship’s husband secures the debt by a note, this liability should therefore be discharged. All the ship owners participate in the actual benefits of the purchase ; and the note merely operates as an extension of credit. Everitt v. Collins, (2 Campb. 515.) Indeed, it would have been out of the usual course of business, to have required the note of any one beside the ship’s husband. As this note, then, is not a discharge, neither is it am election to take up satisfied with the note. The very word election implies equity. Would it stand in a plea, either of payment or accord and satisfaction ? Clearly not. Then why does it come under the general issue ? because, as was said by Ld. Mansfield, in 2 Burr. 1010, “In assumpsit, the defendant may go into an equitable defence, under that issue.” It is only in the event of their being injured, that they can avail themselves of this defence ; because, till that injury is
T. A. Emmett, (same side.)
p. 298shewn, they have no equity. This is the rule as marked ou-t by many cases, among which are Herring v. Sanger, (3 John. Cas. 71 ;) Smith & Marshall v. Rogers, ( 17 John. 340 ;) and Reed v. White, ( 7 John. 311 , 313, 314.) In the last case this distinction is particularly pointed out. Nor is there any weight in the distinction, that the plaintiffs were ignorant of the defendant’s being owner. This is a mistake of the case in point of fact. From the account itself, and other evidence in that case, they evidently did not know that there was an owner, or owners, other than the ship’s husband. The reasoning from this distinction, therefore, goes to say, that, if ignorant of the names of the owners, the vendor may afterwards charge them, although he has, in fact, discharged' them. Schermerkorn v. Loines, is the same, in principle, with the present case ; and Wyatt v. Ld. Hertford, (3 East, 147) was the same, not only in principle, but in fact. The defendant’s liability is placed upon the single ground, that he was not prejudiced.
But suppose it necessary for us to prove, affirmatively, that the defendants have sustained no injury. This has been done as far as it is susceptible of proof on our part. The defendants had early notice of the account, from the ship’s husband. It is enough that this appears negatively. Injury is a matter, the burthen of proving which lies upon the defendant. In all the cases, like the present, which have been cited against us, had the fact appeared negatively, as here, the plaintiff would have recovered. This would have been the case in Evans v. Drummond, cited from 4 Espinasse, and Arnold v. Camp, in 12 John, will admit of the same remark. In the cases cited from 15 East, 4 Taunton, and 1 Barnewell & Alderson, the original undertaking was by the agents themselves—not the principals. Writing the letter can make no difference with the debt, or its security. By-calling on one fund, the plaintiffs do not discharge their claim on the other. They might have preferred calling on the agent as the more direct remedy ; or they might have supposed that their further remedy was gone. Their ignorance of the law could not affect their vested rights. It is, at most,
p. 299a mere act of incaution. The rights of the- parties were fixed long before the letter was written. Within 2 or 3 days after the sale, an account is made out, and delivered by the plaintiffs, against the ship’s husbands only. That it must have been within this, or some very short period, is evident; for, in a few days after the sale, in the language of the case, this account is furnished, by F. Jcnlcins & Son, to the other owners, which could not have been done without first obtaining it from the plaintiffs. The question we make is, to whom was the credit given ? It appears, by Schermerhorn v. Loines, and other cases, that the invariable practice is, where the vendor means to hold the owners, to charge the ship, by name, and owners. The entry of the charge, in the plaintiffs’ books, was a mere copy from the captain’s book, who headed it, in the usual form, Ship Cadmus & owners. AH the plaintiffs’ acts, which we know any thing of, which go to fix the credit, are against F. Jenkins & Son, only. Then, in the very first instance, in limine, the defendants are discharged, and the cases cited, to shew that when the credit is given to the agent you cannot go against the principal, apply. A further proof of what we contend for, is, that F. Jenkins & Son render an account to their principals, of the whole, as a disbursement, in a single item—not a detailed account, as if they were to be charged. But whatever the original credit might have been, in about two months after the sale, the note is taken. This is negotiable, and on an extension of credit for 8 months. Such a step not only gives character^ to the original transaction, hut, if once liable, we are discharged. It is by way of inference, only, that it can be said the note has not been paid. The cases wherein the questions, whether a note operates to discharge a precedent debt, have arisen, all go upon the principle of intention. This is exhibited, most conclusively, by the letter contained in the case. The letter claims to have the debt considered confidential. It was not necessary that the plaintiffs should be lawyers to understand their own intentions, either in the creation or discharge of the debt.
S. Jones, in reply.
p. 300Confidential, as used here, and, in a commercial sense, means that, because the debt was contracted under particular circumstances, it is to be paid at all events. It is evident, from language, that the plaintiff took the note for letter— for worse ; and they follow it by a receipt in full, I do not say that a receipt is conclusive; but it is always prima facie evidence. It is settled that, though part owners are liable on a general contract, a security for the debt, taken from one of them, with a full knowledge of their liability, will discharge the1 others. Schermerhorn v. Loines goes upon ignorance that there was' any other owner than Townsend, and upon no Other ground. The answer would not avail, that there had been a settlement between Townsend and Loines. Election implies knowledge; the attempt to shew which, by a publication in the pazette, was there repelled by the evidence of the plaintiff’s clerk. Both the counsel and the court advert to the ground of ignorance. Suppose a settlement had been made between Townsend and the other defendants—it would have been no defence ; because there was no knowledge, in the plaintiffs, of the relation between them. It would have been res inter alios acta. In Reed v. White, the note was taken after the ship’s husband had received large freights, an 5 the Court, it is true, advert to this point of injury. But the real ground taken, in that case, is the same for which we contend here. Wé stand much on the same ground as dormant partners. They are liable only while they continue partners; though it may be otherwise with those who are publickly known as such. It was on this ground that Evans v. Drummond proceeded. In that case, Ld. Kenyon asks, “ Is it to be endured, that, when partners have given their acceptance, and where, perhaps, one of two partners has made provision for the bill, that the holder shall take the sole bill of the other partner, and yet hold both liable ?V It was not pretended that Drummond had suffered any injury. The perhaps, therefore, that he might have made provision, was without foundation. The defendant was always liable; and it was taking the note, attended with the circ.umstance qf knowledge, svhich worked
p. 301ihe discharge. Bedford v. Deakiu et al. (2 Barnw. & A lde rs. 210) presents these very points. Bay ley, J. says, In this case, all the three partners originally were liable for this debt; and no arrangement, between themselves, can vary the right of the creditor. That right, however, may be destroyed, by the creditor consenting to accept of the separate security of one partner, in discharge of the joint debt.” The Court put the case entirely upon the reservation of the original liability. And Bayley, J. says, that the two cases of Reed v. White and Evans v. Drummond, cited from Espinasse, proceeded upon this foundation, viz. that one partner may be discharged by the note of another. He further says, that the notes “ cannot amount to a satisfaction of the joint debt, unless they were, when taken by the plaintiff, intended by him as a satisfaction for it;” which brings it back to the question of intention. Partners are sureties for each other; and is there any doubt that taking the note of the principal would discharge the surety ? That intention is the test, is also admitted by the case of Sheehy v. Mandaville, ( 6 Cranch, 253 .) The Court there say, “ The principle appears to be well settled. The note of one of the parties, or of a third person, may, by agreement, be received in payment.” ( 6 Cranch, 264 , per Marshall, Ch. J.) To the same effect is Arnold v. Camp, and Toby v. Barber, which has been cited from 5 John. There is not one case which goes upon the single ground of injury. The nature of an election is to bind forever, and it can never be changed, unless upon mistake when made. If you give credit to one, you can never extend it to another ; and, where you receive a note as payment, you never can, by any subsequent act, change its op* ration. It gives the party, as was decided by Ld. Kenyon, in Evans v. Drummond, a right to act as if discharged from the debt. It is true, that, in some cases, where a discharge is not intended, yet the act of the plaintiff shall have that effect; as if, by a receipt in full, given to the agent, the principal is defrauded. But this is on a distinct ground, steering clear of the question of intention, which is presented by all the cases, including those of Wright
p. 302v. Hunter, c’ted from 1 East, and Scottin v. Stanley, cited from j)anasm Wyatt v. Hertford, (3 East, 147) and Cheevers v. Smith, in our own reports, are cited, as settling a different These are cases in relation to master and servant. But there the master, alone, is liable ; and the bill, or note, drawn by the servant, is the same as if it had been drawn in the master’s own name. The servant is the same as the master. He acts in his place, and the principal will not be discharged, unless an injury has arisen to him. Such cases rest on the law of principal and surety. - But, though a debt is not discharged by a note of the surety, yet the converse of the proposition is not true ; for a note of the principal, extending the credit, will always operate to discharge the surety. (Gould et al. v. Robson & Keymer, 8 East, 576.) Now, as to the share of this debt due from F. Jenkins & Son, at least, we were mere sureties, and entitled, on that ground, to a discharge for so much. But we have been injured. Whitlock & Jenkins were, in equity, liable for their aliquot share only. It will be seen, by the quotation from Livermore, which was made on the other side, that the ship’s husband is to buy stores, furnish the ship, pay for them, and look for reimbursement to the owners. Now here the note of the ship’s husband is taken, and 8 months time, beyond the usual credit, is given. By this extension of credit, we are not only liable to pay our aliquot part, but we are subject to pay both. It is plain, from the nature of things, as well as from the letter, that the whole debt is thrown upon us by the delay. And besides this, we are, perhaps, left liable to pay the whole of the other disbursements; or so much, beyond our share, as to have heavy claims over against F. Jenkins & Son, in consequence of this very payment and receipt. Perhaps, as Ld. Kenyon says, in 4 Espinasse, we have made payments or adjustments upon this very basis. At any rate, the cause should have gone to the jury, if there was a single fact for them to pass upon. The Judge should have decided the law, but the facts should always be referred to the jury, with directions to apply the law.
The goods were ordered by Frederick Jenkins & Son, the ship’s husbands, and delivered on the 20th November, 1818, at a credit of 4 months. They were charged, at the time, in the plaintiffs’ books, to the ship Cadmus, for account of Frederick Jenkins & Son, and Whitlock & Jenkins. Two bills, of the goods in question, were afterwards rendered by the plaintiffs, to Frederick Jenkins & Son, headed as follows: “ Novr. 20, 1818. Ship Cadmus, acc. of Messrs. Frederick Jenkins & Son, to Muldon & Montgomery, Dr”
The original credit was expressly given to all the defendants, as appears by the original entry in the plaintiffs’ books: they are consequently liable until legally exhonerated. The bills rendered after the charge thus made, and delivery of the goods, cannot release Whitlock & Jenkins ; for it does not purport to be an extract from the books, but a statement of the articles sold. I do not understand that, thereby, Frederick Jenkins Son are designated, as sole debtors. It is the ship Cadmus’ account; or, in other words, a statement of stores for the ship Cadmus, as delivered to Frederick Jenkins & Son. The bills were memoranda of the goods, and had no reference to the question—to whom was the credit given ? This act does not furnish any evidence of an election to discharge a part of the owners; but, in my view, is perfectly consistent with their liability.
The case of Schermerhorn v. Loines & others, ( 7 John. 311 ) decides, that where a person, on the order of the ship’s husband, supplied stores to a ship, of which there were several owners, and took the note of one owner in payment, and gave a receipt in full, it was no discharge of the others; that taking the note, and giving a receipt, was no extinguishment of the original debt, unless the note was paid. It is true, the Court allude to the circumstance, that the plaintiff did not know that the other defendants were part owners; but I do not consider the decision as turning on that point.Ignorance of the other owners would, indeed, place the justice of the plaintiffs’ claim in a stronger point of view but, without that fact, it is well supported by authority. The principle which governs is this, that taking a note for a
p. 304
pre-existing debt is no payment, unless it be expressly- agreed to ta^e ^ as such, and to run the risk of its being paid. It only postpones the time of payment of the old debt, until a-default be made in the payment of the note ; that the inference arising from a receipt is not enough to establish an agreement to take the note as absolute payment. This doc- . trine is fully supported in Toby v. Barber, ( 5 John. 68 ) and the authorities there cited. It is also recognized in Arnold v. Camp, ( 12 John. 409 .) This last case was cited by the' defendants’ counsel, on the argument, but, in my view, does-not support the doctrine contended for. The facts were these: Camp and Downing, being partners, gave the plaintiff their note, which Downing took up, by giving his own note, having received property from Camp, his partner, fertile purpose of discharging the joint note. Afterwards Doro ning took back his own note, and returned the partnership note. The Court say, “ the circumstances fully warrant the conclusion, that the individual note was intended to be-given to, and was actually received by the plaintiff, in satisfaction of the partnership note; that it must necessarily be inferred that it was- delivered up ■ for the purpose of being destroyed.” This, then, was considered a sufficient proof of an agreement to discharge the partnership demand. Without such agreement, it is an authority to show"'that the original demand remained in force. It does not appear, by-the case under consideration, that the defendants have been prejudiced. The mere extension of the time of credit operated in favour of all the defendants. It was the- exercise of a discretion vested, by law, in the plaintiff. He, thereby^ incurred no risk. Frederick Jenkins & Son rendered to Whitlock & Jenkins, a few days after the stores -were furnished, an account of the disbursements of the ship; which account was never settled between them, nor any payment made by Whitlock & Jenkins, on account of the stores. There is, then, no evidence of actual loss, sustained in consequence of taking the note of Frederick Jenkins &. Son. If there had been, it would present a different case; In Reed v. White, (5 Esp. 122) the defendants insisted, that the plaintiff had discharged the other owners ; who, in ignorance of
p. 305
thb dealing between the plaintiff and White, had suffered him to receive large sums of the East India Company, for freight, which they would otherwise have detained. It seems to me this was a material circumstance, on which that case chiefly turned. This Court, in Schermerh'orn v,.Loine.s, so considered it; for they observe, “ the case of Reed v. White proceeds on the ground that the plaintiff had taken the ship’s husband, exclusively, for his debtor, knowing there were other owners, and after a settlement of accounts between them and the ship’s husband.'11 The principle is also recognized in Wyatt v. The Marquis of Hertford, (3 East, 147.) The plaintiff had taken the draft of the defendant’s agent, without the knowledge of the principal, and gave the agent a receipt. Lord Ellenboroufh said, “ it did not appear that the defendant was in any way prejudiced, by his steward having given his own security to the plaintiff, and taking the lattér’s receipt; that, if it had appeared that the defendant had, in the interval, inspected the steward’s accounts, and had, in any manner, dealt differently with him, on the supposition that this demand had been satisfied, as the receipt imported, no doubt the defendant would have been discharged.”
I do not perceive any ground for submitting this case to a jury. The facts were not controverted. The question is, whether, in judgment of law, the defendants are liable ? My construction is, that they are. Besides; the defendants did not, at the trial, request the Court to submit the cause to the jury; but, correctly, put their right on the ground that the law was in their favour. The letter of Muldon does not contain an admission that the plaintiffs agreed to discharge the other owners. It states—“ for the accommodation of your house, took your note, for eight months interest.” I should incline to the opinion, that the accommodation here spoken of, referred rather to the extended time of payment, than to the question of general liability. They speak of its being considered confidential,-and that the loss would be insupportable. I admit that this language goes far to prove that Muldon was under an impression that, by taking the note and giving the receipt, his remedy was against Frederick Jenkinp
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,& Son, solely. Entertaining such an opinion, the letter might well be written in this manner. No doubt he supposed the inference of law would be, that Whitlock dr Jenkins were exonerated, although he had made no express agree?ment to that effect. This misapprehension of the law cannot avail the defendant. If the letter does not contain evidence of an agreement to look to Jenkins & Son, solely, independent of the note and receipt, it is immaterial. That it does not, I am satisfied. The motion for a new trial must be denied.
The original liability of the defendants, as part owners of the vessel, is clearly proved. The articles were charged, in the plaintiffs’ books, to Frederick Jenkins dr Son and Whitlock dr Jenkins, the defendants. The only question, then, is, whether the plaintiffs, by their subsequent conduct, have discharged the defendants from their original responsibility. Let it be kept in mind, that the proof establishes, incontrovertibly, that the original credit was given to Frederick Jenkins d? Son, and to the defendants, jointly. The subsequently taking a separate note, from Frederick Jenkins dr Son, is not evidence that the original credit was given to them ; but is adduced, as amounting to a discharge from an acknowledged antecedent' debt. It is evidence, as the defendants contend, .of a subsequent'agreement, on the part of the plaintiffs, to look to Frederick Jenkins dr Son, alone, for payment. Now no principle of law is better settled, than that taking a note either from one of several joint debtors, or from a third person, for a pre-existing, debt, is no payment, unless it be expressly agreed’ to be taken as payment, and at the risk of the creditor« Nor does the taking a note, and giving a receipt for so much cash, in full of the original debt, amount to evidence of such express agreement to take the note in payment. The agreement must be clearly and explicitly proved by the original debtor, or he will still be held liable. (2 Ld. Raymond, 928. 1 Salk. 124. Owenson v. Morse, 7 T. R. 64. Tobey v. Barber, 5 John. Rep. 68 . Johnson v. Weed & another, 9 John. 310 . Sheehy v. Mandeville, 6 Cranch, 258 . Opinion
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of Marshall, Ch. J. 264.) Giving a prolonged credit upon the note, beyond the usual time, cannot change the liability of the parties, unless the defendants can show that they have sustained an injury in consequence of it.
But rendering the account to Frederick Jenkins & Son, and taking their note for the stores furnished the vessel, was not out of the ordinary course of business, even upon the supposition that the plaintiffs still intended to hold the defendants eventually responsible. Frederick Jenkins & Son were the ship’s husbands. These are defined to be “ a class of agents, whose chief employment it is, (among other things) to purchase the ship’s stores, for her voyage, and to make disbursements for the ship’s use, and to make out an account of these transactions, for their employers, the owners of the ship, to whom they are, as it were, stewards at land, as. the officer bearing that name is, on board the ship, when at sea.” (Livermore on Agency, 72. Beawe’s Lex. Merc. 47.)
The fact, that they were also part owners, does not alter-the case. They were the persons to whom it was natural and proper for the plaintiffs to present their account, and, in the first instance, to look for payment. They were the agents for all the owners, and in that character the plaintiffs dealt with them. They gave their note as the agents of the defendant. It was their note, in judgment of law ; and, not having been paid, the plaintiffs have a right to resort to their original cause of action. (Everett v. Collins, 2 Campb. 515.)
This case is, in no respect, distinguishable from that of Schermerhorn v. Loines, ( 7 John. Rep. 311 ) except that, in that case, although the plaintiff knew there were other owners besides Townsend, there was no positive evidence that he knew who they were. The evidence there certainly-warranted the presumption that he did know who they were. But that fact is only mentioned incidentally, in the opinion of the Court, and is, by no means, the point on which the decision turned. The Court, evidently, put their opinion upon the broad ground, “ that the defendants were liable as owners, and that taking the note of Townsend, the ship^s husband and part owner, was no extinguishment of the ori
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ginal debt, until the note was paid.” They distinguish the case from that of Reed v., White, by remarking that, “ in that case, the plaintiff had taken the ship?s husband, exclusively8for his debtor, knowing there were other owners, and after a settlement of accounts between them, and the ship's husband.” Now it does not appear, in Reed v. White, "that the plaintiff; knew who the other owners were, but they were held not to he liable on the ground that, having been kept in ignorance of the transaction between the plaintiff and the ship’s husband, they had suffered him to receive large sums of money, which 'they otherwise would, not have done. (Reed v. White, 5 Esp. N. P. Rep. 122.) The true principle, applicable to this1 class of case's, seems to be this : If a man deal with the agent of. another, in such a manner as to enable him, to settle with his principal, and receive from him a sum of money, or other advantage, which otherwise he would not have been able to obtain, and the principal does, in truth, so settle with his agent, he shall 'not, afterwards, be responsible upon the contract of his agent, if he fail to pay'. (Wyatt v. The Marquis of Hertford, 3 East's Rep. 147. Cheever v. Smith & others, 15 John. Rep. 276 .) In this case, "the defendants have not been misled, or injured, in consequence of the manner in which the plaintiffs dealt with Frederick Jenkins & Son. They have hot settled with them upon a different principle, or paid them any money, which they would not otherwise have done. Upon every principle," therefore, tpey must be held responsible, upon this contract.
Much "stress was laid, in the argument, upon the letter from the plaintiffs to Frederick Jenkins & Son, of 'the 25th June, 1819, urging the payment of the nóte-, in very pressing terms, although Frederick Jenkins f Son had then failed. The inference drawn from it was, that' the plaintiffs must then have thought their only remedy was upon the notei This is, by no means, a necessary consequence. Having dealt with Frederick Jenkins f Son, alone, throughout the transaction, they may have thought it" their moral, if hot their legal duty, to make every exertion in their power to obtain payment from 'them. They were' also ignorant of thp state óf the accounts' between jFrederick Jenkins fy Sun
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anil the defendants. They did not know but the defendants had paid them the amount of this account, upon the strength of their receipt to Frederick Jenkins Sy Son. Thus, they had many inducements for wishing to obtain payment from them, independent of the belief that the other defendants were absolutely discharged ; and their unavailing efforts, for that purpose, can afford no protection to the defendants, against this demand. I am, accordingly, of ppinion/that the plaintiffs are entitled to judgment.
Savage, Ch. J. concurred.
Rule for judgment absolute1.