Majority
p. 58Mauri against Heffernan.
Headnote
The defendant entered into an obligation with the plaintiff as his surety at Calaceas, which not being performed, the plaintiff, the surety,was compelled, by proceeding at law to pay the amount for his principal in an action by the surety against the principal, it ws held, that a copy of the obligation, (which according to the Spanish colo nies, was made before a notary, who kept the original and delivered, copies to<the parties,) authenticated according to the-laws of Spain-, connected with evidence thatthe originaheouid oot he procuredt and with proof of admissions, by the defendant, of its «authenticity, and of the breach of the contract, was sufficient, without producing the decree against the plaintiff, and the original obligation, ór a sworn copy of it. ‘ 'Where a contract has béen broken, the surety-may pay the money without suit, and recover against his principal. . .* . . *, . ’ .
A party who-would éxcuffe-hiraself from.responsibility, oh the groúnd'that he acted.ás the ageut of another, ought to show that he communicated to the other party hia situation as>agéñt, and that,he acted in that capacity, so ás to-give a remedy over against his principal x ■
THIS was an. action of assumpsit,, brought to recover money paid by the plaintiff, as. surety for the defendant. The cause was. tried- at the .New York sittingsy in May, 1815, before his honour the chief justice.
The defendant entered into a contract with the royal administration oí tobacco, at Lbtbccbs, tor the purchase and exportation °f a i-arge qwa-nti:ty (1,500- quintals)- of tobacco,; -which was an Article of royal monopoly, and could only _bé purchased from. Jh© .government, or; its ’.agénts.; He, afterwards, executed- á bond or obligation, with the. plaintiff as his suréty, to the royal administration, to'sécttre the payment of the value of 956 quin»tais and 93 pounds tobacco, described' in the bond as the re- '
p. 59
mainder of the 1,'500 quintals previously contracted for. The bond was as follows: “In the city of Caraccas, on the 18th day of Kovember, in the year of our Lord 1805, before the chief notary of the administration of tobacco, and before the witnesses hereunder written, personally appeared in his dwelling house, Don Pedro Edwardo, of this place, merchant, to me known, who-declared that Mr. John Heffernan, citizen of the United States of America, and resident in the port of Laguira, hath constituted him his attorney for the. execution of this written instrument, which he is to execute with- Don Jose Mauri, his surety, or with his certain attorney, in his name, to answer for the value of 956 quintals and 93 pounds of dry cured tobacco, now in Puerto Cabello, the remainder of 1,500 quintals contracted for with the administration, by said Heffernan, on the 13th day of July, in the present year, for the value of which he is to answer in one month from the date of this instrument of surety, which said power of attorney he has exhibited to me, and which is as follows, to wit. (Here the power of attorney from Heffernan to Edwardo is set forth in hcec verba.) Don Jose Carbonel, also personally appearing, said, that Don Jose de Mauri having become surety for the aforesaid ■Heffernan, has given to him a power, constituting him his attorney for the execution of said written obligation and deed, which .he exhibited to me, and whose tenor is literally as follows. (Here the power from 'Mauri to Carbonel is set forth.) And making use of the faculties-by said powers upon them conferred, in the names of their principals, they renounce, &c.; (the. benefit of certain laws-;) and Don Jose Carbonel, in the name of Don Jose Mauri, said, that, he recognises and constitutes him such security and principal payer of the sum to which the aforesaid 956 quintals and 93 pounds of tobacco, dry cured, may amount, binding him jointly with Mr. Heffernan, who to the same is bound by his attorney, Don Pedro Edwardo, jointly} and in solidum, to be paid, in case of non-compliance with the stipulations of the contract aforesaid, renouncing, as they have expressly renounced in the names of their principals, and under the conditions stipulated, which are, first, that the tobacco aforesaid shall be exported as soon as possible. - Secondly, that the said tobacco shall be examined, weighed, and marked, as quick as possible, in the stores of the king, the dangers of robbery and fire being on account and risk of the royal administration;- and on account and risk of their principals, the damage
p. 60
Which may occur to. said article frqm their delay in' exporting it, tógetier with storage.. ■ Third, that within ten. days after, tho delivery of said tobacco for loading, the value of which shall appear from the invoice to be made put at the time of the acknowledgment and delivery must be paid. Fourth, that in cásegovernment should prohibit th.e entry of tpe vessel, which is to. come in ballast, to take off the remainder of the tobacco in Puerto Cabello, that then all responsiblity shall cease, and the contract shall, also b,e considered, null, and the royal administration b.e answerable - for the damages thereby occasioned,, under Which conditions, aad the terms aforesaid, Don Pedro*Edwardo, and Don Jose Carbonel, renounce, &c. (the benefit of certain laws.} • For the due observance of which the aforesaid Don Pedro Edwa'r ¿o, and Don Jos.e Carbonel, bind the persons of their, .principals, their property and effects, .which' ¡they now have, or which they may in future acquire,‘granting, in the names- of their principals, full power as is by. law required,, to the judges -and justices of Ms majesty, to compel them to the due observance and fulfilment of this instrument in writing, by executive measures, as. if judgment were.alreády given thereupon,, renouncing, &c. . In. testimony whereof they executed, and signed the same for their principals, in the presence.of Manuel Jope-z, Don' Pedro* Guzman, and Don Juan Hustado, of this place, and which I attest, Pedro Edwardo, Jóse Carbonel. Before me, Matteo de Amite* sarona, notary of the.royal administration,Y -., ‘
Six or eight months after the. execution of this obligation, á decree was. passed against the plaintiff, by’-the intendant, for the - amount of the tobacco, specified in the contract, and by the influence of the plaintiff’s friends,, the execution of’the decree was delayed for two years, when the plaintiff being informed by the king’s assessor, that it was. impossible longer to delay the execution, presented a petition to the intendant for leave to pay .the amount by monthly instalments, and, in the mean time, to . be allowed to export the tobacco. On. this petition it was; ordered that the plaintiff be permitted to export the tobacco-upOn- giving further security for such payments, whereupon Roman Perez de ip Portella .was offered and accepted as security, a-ndJosepA Pac~ cánius Y. Nicolan, (whose deposition was;-read.at the trial,) at the plaintiff’s, request, undertook to pay the instalments as they might fall due, and-he accordingly did pay into the royal trea.pury, in five different instalments, the sum of 20,Si 8 dollars and % reals, in discharge of the said obligation.; the last of which-
p. 61
payments was made the last of August, or beginning of Septemher, 1808. The discharge of the bond was as follows:
“ Caraccas, 17th day of September, 1808. On this day, before me, at the request of Don Jose Mauri,, his excellency the in'tendant, with the advice of the assessor general, ordered the instrument in front to be_ cancelled, said Mauri having paid the sum of 20,618 dollars and 7 reals, which thereby appears to be due by John Heffernan, and said 'Mauri paid the sum, as security, according to the representation of the administrator general; and, that the same may be no longer of any force, I note the payment thereof, in conformity with a decree issued thi? day; which documents will be found in the bundle of voucher? which I sign and attest. Amitesarona, notary. It agrees with the original, which is in the register, under my care; and to deliver the same to the concerned, I caused this copy to be made, which I sign in Caraccas, oh the 26th day of September, in the year 1808. Matleo de Amitesarona, chief notary of the royal administration.” “We, citizens Jose Feliz de Arauda, treasurer to the army, and Diego Jugo, minister of the revenues, in this port, and Andres Martinez,, fiscal notary, &c., certify, that citizen Matteo Amitesarona, by whom the preceding documents are authorized, is the chief notary of the administration of tobacco, and that to his instruments entire faith and credit are given, both in courts of judicature, and elsewhere. In testimony whereof, the present is given, in the port of Laguira, on the first day of November, 1811. José Feliz de Arauda, Diego de Jugo, Andrés MartinezN
On the bond and cancelment being produced at the trial, the defendant’s counsel objected, that the original obligation ought to be produced and proved, or that a copy, sworn to, and compared with the original, should be produced. The plaintiff, thereupon, proved, by Don Mariano Velasquez, who had received the degree of doctor in the civil law, at Madrid, that, by the laws of Spain, and her colonies, all contracts are executedbefore a notary, and remain with him of record, who gives to the parties certified copies, under his signature; that the • copies, thus authenticated, are read in all courts and tribunals where the Spanish laws prevail; and if used in the place where the notary resides, his single attestation is sufficient; but, if used in other places, his attestation is verified by the attestation of two gthpr notaries, or two king’s offiqers, who certify the notary’?
p. 62
handwriting. The. witness stated, that the paper produced was jn ¿¡Ug form,, according to the laws of Spain, and her provinces;, to entitle it to be read in evidence in the Spanish courts. The chief justice permitted it to be read in evidence. There WaS other evidence as to the law of Spain, on this point, as to the authenticity of these documehtsy and of the signatures to them, which it is unnecessary to state.
Paccanius, in his deposition, in addition to the foregoing,facts, stated that, being about to come to the United States, he was charged with the adjustment of the plaintiff’s claims against the defendant, and, soon after his arrival at New-York, had several personal interviews with the defendant, on the subject,, and left with him the plaintiff’s account, containing a charge of 20,513 dollars and 8.7 cents,.paid to the royal administration of tobacco* at Ctireccas, as security for the defendant. In these conversa» lions, the defendant did not dispute the justice of the plaintiff’s claims, nor question the accuracy of any of. the items contained in the account, and acknowledged that the plaintiff had entered into the contract as security for him; but insisted that, in all the transactions relating to the .tobacco, he had acted ms. the agent, and. on .the behalf, of Frederick Baker, and that the plaintiff ought to look to Baker for’ payment. The deponent exhibited to the defendant, among other papers, which, on examination, he admitted to be genuine and authentic, the copy of the bond, &e., which was given in evidence. In the course of conversation,, the defendant.told the deponent, that he had not sent a vessel to take away -the tobacco* being apprehensive that she would not be admitted, on account of Miranda's expedition.
The deposition oí Juan Yellas F. Ferra confirmed the state» ments, in Paccanius'’ deposition, respecting the tobacco contract, and the payment of it, and mentioned similar admissions which had been made by the defendant to him; and also, stated,’that the plaintiff sold the tobacco, after he had kept it'for a long time, t6 a Mr, Denker, of'•Sit Thomas, pursuant to the advice of respectable merchants. In the year 1807, or ,1808, the deponent went to St. Thomas, on his own business, and carried with him. ,ah order from. Jfawnf.on Denker, fobthe price of tobacco ; but it was publicly understood, át that . time*, that Denker had failed. Denker,, afterwards,.-however, paid a part to Mauri'.s nephew, who was sent by Mauri for the purpose. The deponent, alsp stated, that he had no reason to imagine1 that
p. 63
the plaintiff, "when he became surety for the defendant, was Acting in the behalf of John Serré, (who was alleged by the defendant to have beep the principal in the transaction,) or . that the money that the plaintiff was compelled to pay, was paid out of the funds of Serra, or that the plaintiff was, in any manner, indemnified by Serra. . '
The plaintiff produced in evidence certain letters from the defendant to the plaintiff ; in one of which, dated February 7th, 1806, the defendant says: “ I shall despatch, towards the end of this present month, a vessel; if circumstances will permit, for the rest of the tobacco that Í contracted for in Puerto Cabello ; but, at all events, I shall take care to indemnify you from your suretyship to the royal administration of tobacco.” In that of the 6th of January, 1808, he says : “ I am very sorry that you, and Don Pedro Edwardo, have not annulled the contract that I foolishly signed for the sake of Don Juan Serra. My friend, be under no apprehension that you will, in any manner, suffer in' the affair, notwithstanding that you were the agent or attorney of Serra: I am, and will be, the only victim.5’ In another', letter, of the 23d of June, 1810, he says : “ At your convenience, you will do me the favour to inform me in .what manner the affair of the tobacco, that they so perfidiously threw upon my shoulders, was adjusted, and whether you had to pay any thing, and how'much ; for, probably, before many months elapse, you will see me in your city 5 or, otherwise,-1 shall find a person, in whoni I have full confidence/to seé you, for the purpose of settling and clearing up the unfortunate affair, and of claiming from the contractors what they owe. Repetitions aré useless; but you will perfectly remember the manner in which they deceived me, when, in presence of yourself and Don. Manuel, the contract was made with Don Juan Serra, in his own name,. and in that of the intendant and Linares, for two cargoes, which I afterwards sent, consigned to you, as agent or attorney of Serra, and, according to agreements, presuming that they would perform it with good faith.”
On the part of the defendant, the deposition of Francis Gohgales de Linares'was read; the deponent stated, that he was acquainted with John Serra, of Caraccas ; that, in the month of July, 18Ó5, according to the best of his recollection, Serra ‘departed on a voyage from Laguira to Old Spain, and afterwards returned, but, during his;absence, tjie plaintiff acted as his agent j
p. 64
arid that the plaintiff was the agent of Serra, generally, at Lfc güira..' ¿These fact's were confirmed- by the depositions previously read on the -part of the plaintiff,] , That the defendant was at Caraccas some time in the month oí June, or July, 1805, that,"-, soon after, the defendant left Caraccas', ■ oh a- voyage to' New-York;, the-object-of which was, as the deponent understood, to take, from Caraccas to New-York, colonial-produce, in which the proceeds of a certain shipment, made by-Maker <§* English, of New-York, was invested ; and:, that -the defendant acted- as the supercargo of the said shipment, and as the agent of Baker & English.. The deponent recollected the arrival of the ship Catharine at Laguira, from New-York, in the summer •of 180S, with, as he understood, a cargo of dry goods, consigned; either to the plaintiff, or .Serra, as his agent; he did'not know who was the consignor; the ship was not immediately permitted to enter, but was, for some days, prevented, in consequence of the port being, at that tirne, shut against the admission of foreign vessels: The deponent remembered the arrival of the ship Stranger at Laguira, from New-York, with a cargo of merchandise, some' time in the month of July, 1805, which was consigned either to Serra, or the plaintiff,' as his agent; but he did not-know who the consignor was; nor did he recollect whether the ports Were open on the arrival of the Stranger, but he thought that they were, and that she was admitted immediately to enter. 'There was a contract between the defendant, Serra, and the deponent; to which contract, Serra represented to the deporient. the'intendant at Caraccas, Don Juan Vicente'.de Arce, .was a party, the particulars of which he- did not recollect; but it was, generally, for the importation of merchandise, from- the United States to Laguira, and the exportation of produce in return; and it was agreed that, in case the merchandise, or any part thereof, should arrive when the ports were shut, every facility should be given to Heffernan, by the Other contracting parties, for its immediate admission. Two days after the contract Was entered into, the' deponent declined any farther participation in it. The deponent, stated, that the contract made respecting the tobacco, was- entered into for the purpose of facilitating the admission of the rirerehandise contemplated to be imported -into Laguira, in pursuance of the before-men-. tioned contract.. The deponent understood from Serra, before he- went to Spain, that he. had left the plaintiff full powers to act*
p. 65
'As his agent, generally, and that those powers had particular reference to the Beforé-mentióned contract; the defendant appeared and acted; in these transactions, 'as the agent bf Baker & English. The cargoes Of the ships Catharine and Stranger Were landed; and put in the plaintiff’s stores, and the plaintiff had the general management in making the sales; > , -
The deposition of William M‘Conehey was read, in which he stated that, in Junte, 1805, he went out as supercargo of the 'Stranger^ on a Voyage from New-York to Laguira; that he was employed By Frederick Baker and Jacob Barker, but that the papers were in the name of Barker. The cargo was consigned to the defendant, but the deponent was directed to address himself to John Serrá-.. The Stranger was not permitted to enter the port until three days after her arrival; ahfl on the deponent asking the defendant how he Came to be so fortunate as to get permission for the ship to enter, he replied, that he Was obliged to go through the formality of making a sham purchase of tobacco; The cargo was received by the plaintiff whom thé deponent understood to be acting as agent of Serra. After the Stranger had delivered her cargo, she went round to Puerto Cabello to take in some tobacco, as the deponent understood that it was necessary to take in some, as a colourable compliance with the contract of purchase made by the defendant ; and they were not compelled to take more.than five hundred and twenty quintals ; and it was frequently intimated to the deponent, by the king’s officer, that he need not. take more than, he liked, in 1806, the deponent went' again to Car areas, and took With him a power-of attorney, from the defendant, to himself and Don Pedro Edwardo, for the purpose of settling, among other matters, the tobacco contract with the plaintiff The defendant, under this authority, offered the plaintiff one thousand dollars as a full settlement of all claims he might have against the defendant, on, the subject of the tobacco contract, or. of the plaintiff’s being security therein, and stated to the plaintiff, that he had, in truth, no claim on the defendant on that account, as the defendant was only acting as the agent of Baker and others, and as he, the plaintiff was acting as the agent of Serra. The plaintiff in this conversation, distinctly admitted,. his knowledge that the defendant had only acted as the agent of Baker and others* and that fie, the plaintiff, acted as the. agent of
p. 66
Serra, and required 3, GOO’ dollars, and two. thirds of the eo.mnm*sions, for the tobacco contract, neither of which, the deponent was authorised to give; (it being usual, atLaguira, for the Spanish merchant who does the business, to allow the supercar- > go one half- of the commissions.)
The deposition of Moses Millard was also-read,, on the part ■ of the defendant, who stated, that about May, 1805, he went, as master of the ship Catharine, on a voyage from Jíéw-Yorle to Laguim, and the defendant accompanied him as supercargo. The vessel appeared, by the ship’s papers, to belong to Frederick Baker, who also employed the deponent, and was informed, by Baker, that he and oné John'English.were jointly interested in - the e-argo, which, on its arrival at Laguim,. was to be put into the hands of one John Serra ; and-that the voyage ivas under-. taken in consequence of some agreement which had been made • between the defendant and Serm¡ When the deponent arrived at Laguim,' Serra was there, and about to sail for Europe; the .plaintiff did the business of the vessel, and disposed of the ear- - go. -The- plaintiff was generally, understood, at Lág.uiva, to-be the agent isi.Serra* The deponent, before he left Nem-York,-. understood from Baker, that another vessel, with a^ cargo, was : also to sail on the same voyage, under the same contract made •between the -defendant and Serra* About a month after the . Catharine arrived, the ship Stranger also arrived at Laguim, and was refused an entry for two or three days, but was at length admitted, and the cargo put into the hands of . the plaintiff. -
The chief jastice charged the jury, that he thought the testi- . fiiony, in the cause, warranted the conclusion that the plaintiff had paid the amount of .the bond for the defendant; that it appeared that, in some transactions, the defendant had been the agent of Baker Sr English, and that, in some transactions, the plaintiff had been the agent of Serra ; but that there was not sufficient testimony to show that, in the transaction relating to : the tobacco, the defendant acted as the agent of Baker S' English, or the plaintiff as the agent of Serra, Besides, if a party would excuse himself from responsibility, because he acted in the capacity of agent, he ought to show that:he communicated to the other party his situation' as agent, and that he acted in that capacity only, so as to give a remedy over against the person -whom he represented to be. his principal. That in a
p. 67That it did not appear that the plaintiff had ever paid Paccanius the money he stated that he had advanced, so as to be entitled to bring this action. . . That, by selling the tobáceo without apprizing or consulting the defendant, the plaintiff took it on himself, and thereby waived any demand, on account of it, which he might, otherwise, have had against the defendant. That the notarial copies, or certificates, admitted at the trial, were not legal or proper evidence. In this country, and according to the rules of our law, notarial certificates afe not evidence, except to prove the protest of a bill of exchange, or proceedings in admiralty courts. It is true, that in countries where the civil law prevails, all contracts are made before a notary, who delivers to the parties copies, certified by him, under his hand and seal. In thosb
ease like that of the tobacco transaction, the plaintiff’s becoming security for Serra, was not within the scope of the authority of a general agent appointed for commercial purposes,
The chief justice further charged the jury, that if they thought that the plaintiff had misconducted himself, of acted contrary to the custom of- the place, in selling the tobacco to Dcnker, they must deduct so much from the plaintiff’s demand, because the plaintiff must conform himself to the usage of the place. [Evidence was given, on the trial, respecting the usage as to selling to foreign merchants on credit, which not being referred to in the opinion of the court, it was thought unnecessary to state.]
The jury found a verdict for the plaintiff for 14,808. dollars and 21 cents.
A motion was made to set aside the. verdict, and for a new trial. ■ , .
Hoffman, for the defendant,
examined the facts, in the case, at large, and contended, that in all the transactions relating to, the outward and return cargo of the Stranger, the plaintiff acted; as the agent of Serra, and knew that the defendant acted as thesgeut of Baker; that the tobacco was, in truth, purchased by-the plaintiff, as agent of Serra, and for his benefit, though the plaintiff’s name, and the formality of giving security, were used, as the best mode of conducting the transaction; that the-accounts were incorrectly stated, without distinguishing what belonged to the parties as principals, and what as agents, ,
p. 68countries the copies may be evidence; but the lex loci,, though h may govern as to the contract itself, is not the rule of evidence. by which the contract is to be proved in thé country where the . action is brought, and where the proof of the contract must be , given, Different countries and states 'may establish very diff, ferent rules of. evidence. .In Massachusetts■ and Connecticut\ ■ the oath of the party is received in an action of law, in support; of his demand. In Pennsylvania, the protest of a master, of a vessel, made before a notary, is received to prove the loss in am action on a policy of insurance. But such evidence is not admissible here, \ There-ought, then, to have been a commission taken out tq examine the notary,; and if the original contract could not be obtained, the copy should have been verified, by a comparison '■with the original, ad which might have been shown under a Commission, It appears, also, that the contract was executed by the plaintiff, by his attorney Carhonel, and the only evidence of any power of attorney, is the same notarial'cei’tificate. The originals aré not exhibited, nor the copies verified, ' The notary certifies facts, lie does not set forth the contract been verba, He speaks in the past tense, and narrates facts. His certificate is not a'record, nor a copy of a record, If these. Contracts are, as is said, always kept by the notary on record, there ought to have been an exemplification of that record, or a copy upder seal, In cases under the law of nations, it is true, copies of proceedings of the admiralty court, under seal and signature, are admitted, on proof of the seal,. &c, • Again, the plaintiff alleges he paid the money in pursuance of a decree of a Spanish tribunal at Caraccas* It was essential, therefore, for him tq prove this decree by legal evidence. The bond was no.t for any particular sum; and it was requisite tq show how the value of the tobacco was liquidated, fqr which- the surety was made liable, If the liquidation was. voluntary, on the part of the surety, he ought to show that it was fairly and honestly made. The only evidence of the decree is this same notarial certificate, without any oath qr verification whatever. 1, As to the admissibility of the documents offered in evidence. The powers are set forth verbatim in the notarial certificate, and which is, in fact, a copy ®r- exemplification of the record. The court must he satisfied1 of the genuineness of every paper offered in evidence, For. this
Slosson, and Caines, contra,
p. 69object, it is enough to show, first, that the original cannot be pro-duped, and, next, that the paper or copy offered, as its substitute, is true, or properly verified. Though, when the paper is fifst offered, the court may have doubts of its authenticity, yet if, by the subsequent proofs in the cause, its verity is satisfactorily established, the court will not direct* a new trial. The granting a new trial is in the sound discretion of the court, and stands on different grounds from exceptions taken to the evidence, In countries where the civil law prevails, the contracting parties go before a notary, who takes down their declarations, and draws up the contract in form, which he keeps, and delivers copies to the parties, which are, in truth, originals and counterparts of the contract. The notary is the proper officer to give certified copies. This court has said, that the certificate of a clerk was equivalent to an affidavit,[11] because he is the proper officer. In Duncan v, Scott,[12] Lord Ellenborough held, that copies of depositions delivered by a judge’s clerk, heing in the course of office, were prima facie evidence, without being proved to be examined copies. In Miller v. Livingston,[8] it was held that, where the originals could not be had, copies were admissible in evidenceit is true, such copies must be duly authenticated. Here we have the confession of the defendant himself, that the documents produced were genuine. This confession of the party is equivalent to the production of the subscribing witness to an instrument[9] The admission of the copy implies the genuineness of the original, What higher evidence of the truth of these copies could have been obtained under a commission ? The defendant, having a notarial copy of the same contract, cannot allege that he is surprised by the copy produced at the trial, 2. The deposition of Paccardus■ fully establishes the fact of the payment of the money, by the. judicial decision or decree of. the court at Caraccas,'
In Walrond v. Van Moses,[5] it was decided, that a copy of an agreement registered in Holland, and attested by a public notary there, might be given in evidence for the defendant; especially as the plaintiff had taken out another copy of the same agreement, and would not producé it; for he would not be surprised, as he must have known of the agreement, having himself a copy of it.
p. 703. If the defendant intended to shelter- himself under the character of a mere agent, he ought to have'shown that he disclosed to the plaintiff, at the time the contract was made, the capacity in which he acted; and that he made known his principal, fully .and explicitly, so as to enable the plaintiff to resort to .the principal. The evidence is, that the defendant* in the case of the Stranger, was the agent of Baker Sr Barker, and', in thecaseof the Catharine, the agent of Baker.8/ English.- If the plaintiff had applied to Baker Sr Barker, they would have said, “this is pot our contract; Mr. II. has blended .the business of others, with whom we have no concern ;. you must look W him.” The plaintiff could not sue one set of principals for on© part, and another set of principals for another part of the cqn-, tract. But the evidence shows, that the defendant did1 not pretend to act as agent in this contract.' It was entered into-between him, as principal, and thq plaintiff as. his surety. Though a person is an agent, he may still assume individual and personal responsibility relative to the subject of his agen--, cy.[11] _ Where an agent, without disclosing his. principal, or, which is, the. same thing, does not disclose all his principals* where there are more than one, makes a contract, he. is himself to be treated as principal.[12] Again, the authority and duty of a supercargo is to sell one cargo, and invest the proceeds in another, or return'cargo. The entry . of the cargo and'vessel, at the custom house, is the peculiar duty of the master. The. defendant having gone aside from his duty as supercargo, to enter into this arrangement of the. tobacco contract, in order to procure an entry, must be considered as having acted, in that respect, on-his own personal responsibility.[8] .If the Question of the defendant's, acting as a mere agent, or hot, rested on facts, it was for the jury to decide; and they have determined the fact. If it depended on the written documents produced, those documents clearly show that he acted, as principal. - . Again, the factor arid principal, or owner, may each sue for the same cause.[9] Where a contract operates on two parties, each may sue ; but if one sues, it is a bar to an action by the. other; andv if the owner, or principal, does not sue,, the factor may bring the' action. ' *
p. 71As to the sale of the tobacco,.the plaintiff was compelled, ex necessitate, by the very act of the defendant, to become his ■agent as to the tobacco, a perishable article, which he sold,'and gave the defendant credit for the nett proceeds. This cannot be considered as any waiver of his claims for indemnity under the contract. A surety is not bound to stand a Suit, but may pay the money ih the first instance, and then call on the principal.[11] To understand this case, it is necessary to examine the facts minutely. [Here the counsel examined and remarked on the facts at length.] The tobacco contract’ was subsidiary to the other, and made in the name of the defendant, but, in truth, for the benefit of Serra. It was to facilitate the entry of the Stranger; and the plaintiff must have known that the defendant was' not acting on his- own account, or for his own benefit. The letter of the plaintiff shows this. It is said, the defendant did not disclose the names of his principals; but the plaintiff had the ■ invoice of the cargo, and must have known them. It is true, in regard to foreign trade, that a factor may be sued, because he is on the spot, and his principal, or owner, being abroad, cannot be reached. This rule, however, founded on the convenience of trade, does not apply where both factor and owner reside abroad. Again,, according to the necessary course of this trade, carried on at Caraccas, agents there must act in their own names, and appear as principals, in order to keep others out of view. The confessions of the defendant amount to nothing. Thev are, in substance, this : “ I do not dispute the items of your account.; I put my defence on higher ground;. that I am not liable at all, having acted merely as the agent of Baker, to whom you must look.’’ All subsequent engagements, by letters, are nude pacts, or, if the defendant is to be made liable on them, it cannot be in this action, but on special counts. Again, the extent of the, obligation of the plaintiff, as surety,
T. A. Emmet, in reply.
The declaration, in this case, contains only the usual money counts. The plaintiff must show that he actually paid money for the defendant, not that another person paid it. Where owner and factor both have actions, they must be special actions on the case.
p. 72was indefinite and unlimited. It was absolutely essential, tbéfé¿ fore, that he should show, by 'satisfactory evidence* how the amount was liquidated and ascertained. The decree of the court ought to have been produced, ■ . Further, there is no evidence that the' plaintiff has ever paid F. the money he swears he advanced. F. does -not say that the plaintiff ever paid him a cent. It appears, in-this case, that a copy only, of the power was exhibited to the notiiry, and he gives a copy of a copy* without any verification by the original. Three citizens certify* that the person who gives the certificate is a notary *• there is nothing more. The original and the copy do not appear to have been compared. - ' ' Under a commission, the party could go into an examination .of all the circumstances attending the execution of the instrument. Biit if notarial certificates, or copies, are admissible, a •party may be surprised at the trial, and have no opportunity to:
, Then, as -to the admissibility of the • documents, of notarial certificates* in evidence. In Smith v. Spinolla, the very point was decided, though the case does not appear to be reported.[13] In Downes v. Mooreman[11] it is stated, that “ a copy of an agree-! ment between the abbot of Quarrer and the monks of Lyra? was produced in evidence; to which it was objected, for the plaintiff that, by the rules of evidence, it could not be read, being neither a record nor a public thing, But the defendant pro-duced a copy: of the statute of Oxon. that no, book, &c. should go out of the Bodleian library; and the court gave leave to read the copy of the agreement in evidence; though they admitted it not to be within the general rules of evidence, but on the very particular circumstances of the ease.” Here it was expressly shown that the original could not be obtained;[12] and it was admitted, that to allow a copy, even in such case, to be read, was against the rules of evidence. As to the case off Walrond v¿ Van Moses, it is remarkable that it has never been cited* to that point, in any abridgment of the law, or in any treatise on evidence; nor is there any subsequent case to be found'grounded bn its authority. Besides, in that case, each party had a .copy of the original.
p. 73khdw any circumstances attending thé execution of thé instruí inent, or that it was á forgery;
delivered the Opinion of thé court; The right of the plaintiff to retain the verdict, found in his favour, Will depend principally upon the question, whether there was ‘competent and sufficient evidence of his having become security ■for the defendant, arid that he had páid the money alleged to have been paid on that account ?
It is. Unnecessary tb examine miriutely thé proof that was before thé court at the time application was made for a nonsuit; for, admitting there Was ndt evidence enough,’ at that time, to warrant a recovery, yet, if the deficiency was afterwards supplied, and there was proof sufficient to support the verdict when found, the present motion cannot prevail;
With respect to the instrument, by which it is alleged that the plaintiff became security for the defendant, the proof is abundantly sufficient to show that the original could not bé produced Upon the trial. According tb thé laws of the Spanish province. Where this instrument was executed, the original, or the one actually signed by the parties, remains with the notary before whom it was executed. Copies, certified- and signed by' the notary, are delivered to the parties ; .and such copies, thus authenticated, áre receivéd in evidence in all the Spanish tribunals*
It is unnecessary definitively to say. whether the lex loci Ought So far tb prevail, as to require these notarial copies to be admitted in evidence here, in the samé manner as in the Spanish tribunals* I am inclined to think, however, they ought not to be received as sufficient, per se; but I cannot think they áre to be entirely disregarded, and treated as mere nullities; They ought to í?é received as forming a part of the inferior evidence of the execution of the instrument, when the original cannot be prodbeéd and proved. It appears" to bé a part of the official duty of the notary to give copies; he is- specially intrusted with that power; and, in giving such copies, he acts under his oath of office. The instrument is executed- before him in his official capacity, and an official certified copy, necessarily implies that he saw the instrument executed., In what respect does this ’differ from an examination upon a commission? He Cat! only sWear he saw the instrument executed, and that the copy furnished by him is under oath. Besides, we ought tO.be cautious
p. 74
In declaring that we will receive' nothing short of the examina»1 tj0n 0f plc notary, under a commission, as, there is no mode; of enforcing such examination ; nor is a sworn copy, proved by a person who has compared it with the original, any higher or bet-' ter evidence than that furnished by the, notary, which is a .copy tinder his oath of office.. But the evidence furnished in the case -before us is mote satisfactory than either, arising out of the repeated, uniform, and uncontradicted confessions of the defendant, contained .in,- his.letters, and to witnesses,' whosetestimony was before the jury. ' Paccanius, who, in behalf of the plaintiff, applied to the defendant for payment, swears that he showed him the documents, given in evidence, which purported tQ.be notarial copies of the instrument, whereby the plaintiff became-security for the defendant; and the cancehnent of the contract, upon the payment of up wards of 20,000 dollars by the plaintiff, as security for the defendant, in conformity with a decree of the- Spanish tribunal; that the defendant examined the papers, and, without any hesitationrecognised them as genuine and authentic. In addition to this, he acknowledged to this witness,, that the plaintiff had entered into the obligation on- th'e.tobacco- contract, as security for him. This witness also exhibited; to him an áccount, containing the charge of 20,518 dollafs' and 3Í cents, paid to the' royal administration of tobacco at Caraccas, as security: for the defendant, and referring to the instrument executed on that occasion. The, defendant did not , dispute the justice of the,plaintiff’s claim, nor-questfon the accuracy of any of the items, contained in the account,-but insisted only that he acted as agent,.' and in behalf of Baker ; and that the plaintiff ought to look to-him for payment* To Serra, another Witness, the defendant acknowledged that the plaintiff Was bound as security for him-. This witness also confirms the testimony of Paccanius, ivith respect to the defendant not disputing any of the items contained i¿ the account presented to him. These acknowledgments furnish. evidence ..of an express admission that the- copies offered in evidence were genuine and authentic, copies of the original,. and'serve, to identify the instruments Beyond all dispute. If any thing more eould possibly be wanting, it- is furnished by the defendant’s-letters., In the one of the 7th of February, 1806, he' apprizes, the plaintiff that he should send a vessel for the rest of . the tobacco, and adds; .but,, at all events, I shall take care to indemnify you for your - suretyship to the royal administration of*
p. 75
tobacco. Again, in his letter of the 6 th of January, 1808, he admits he entered into the tobacco contract, and tells the plaintiff to be under no apprehensions that-he shall in any manner suffer in the affair. And, as late as 23d'of June, 18.1-0, he writes, that he had been made the victim in the affair of the tobacco, and wanted to be informed whether the plaintiff had to pay any thing, and how much; promising either to go himself, or send some person, for the purpose of settling the unfortunate affair. If the confessions of the defendant, either by parol or in writing, are at all to be received in evidence, they are amply sufficient, in this case, to show- a due execution of the instrument whereby the plaintiff became his surety. This instrument was not under seal; so that no objection on that account can be made. I see no objection, nor, indeed, was any made'on the trial, to the admissibility of such evidence. In the case of Hall v. Phelps, ( 2 Johns. Rep. 452 .,) it is said, that the confession of a party that he gave a note', or any instrument precisely identified, is as high proof as that derived from a subscribing witnessi
That- the plaintiff has paid upwards of 20,000 dollars on account of the breach of the defendant’s contract with the Spanish government, is established, not only by the admission of the defendant, but by the positive evidence of Paccanius, who swears that he did, at the plaintiff’s request, by his orders, and in his behalf, pay the money into the royal treasury, in pursuance of the decree. It was unnecessary to'prove the decree, as a breach of the contract which the defendant made with the Spanish government, is fully shown by the admissions of the defendant. In his letter of February, 1806, he speaks of sending a vessel for the rest of the tobacco, if circumstances would permit; and he expressly admitted to Paccanius that he had not sent a vessel to take away the tobacco, being apprehensive she. would not be admitted on account of Miranda?s expedition. •
If-the contract was broken, it was not necessary for the plain».¡ tiff to stand a suit. If the liability of the surety, and a payment of the money by him, be shown, it will be sufficient to warrant a recovery against his principal.
In answer to all this, it has been Urged that the plaintiff -was •the agent of Serra, and, therefore, has no right to recover on his own account, even admitting the defendant’s liability to Serra; and, also, that the defendant was acting as the agent of other persons, and cannot be made personally, responsible, but
p. 76
recourse must he had to his principals. I cannot discover from the evidence in the case, any, thing to warrant, Or even to¡ give colour, to the conclusion, that, with respect to the tobacco, contract, the plaintiff was acting as the agent of Serra, The allegation of the defendant, to that effecl, in his letter of January, M08, is top vague to deserve any consideration;: it is at variance with the contract itself, and with the general tenor of the defendant’s conduct and Confessions, and might very well have, been an afterthought in thé defendant, to endeavour tp shift the loss from his own shoulders. Nothing is to be collected from the contract itself, to show that the plaintiff,acted in behalf of Serra; nor is there any eyidenee that he represented himself to the defendant as such agent, when hp entered into the security, Jf such had been the fact, there can bp no dopht that it woulc| have appeared upon the fees of the contract, This the parties well understood, for they made the contract by their agents, as •appears by the instrument, and the authority of the agents, as set out. It is not to. be credited that, if the plaintiff had authority from Sersq to become surety for the defendant, he would not have appeared in that character in the transaction. ' There is no doubt that the plaintiff was the agent of Serra, during his absence in .Spain, and there is considerable testimony tending to show that, in the sales of the cargoes of. the. Catharine and Stranger, be'acted in behalf of Serra. But these were ’mercantile transactions, altogether distinct from becoming security for the performance of a contract in which Serra,, from any thing that ap? pears, had no interest or concern. If the defendant has .procured the plaintiff to become security for him,-in his awn name, And he has been compelled to pay the money,, it very Illy be- . comes the defendant, now, to say he is responsible to Serrq, and mot to the plaintiff* Before the plaintiff is turned arpund to. Serra for indemnity, it ought very clearly to appear that hp has •a, remedy against him. - If the plaintiff ever made the, aciaipwdedgment, stated by JfPConehey, as to his being the agent of Serra, it must have related to a mercantile agency, and not to an authority to become security on the tobacco contract. At all (events, this was matter for the consideration of the jury. Ferro,, who appears, from his examination, to have been well acquainted with the circumstances, in relatiou to the tobacco contract, and the payment of the money by the plaintiff, says he has no rea$pa to imagine that the plaintiff, when he becamesurety far Jhp
p. 77
.defendant, was acting in behalf of Serrcc, or that the money which the plaintiff was compelled to pay, as such surety, was paid out of the funds of Serra, or that the plaintiff was in any manner indemnified by Serra; nor is the evidence sufficient to prove that the defendant acted as the agent of any person, in making the tobacco contract. The contract, itself, does not recognise him in that character; nor does the evidence show that, at the time of making the contract, he represented himself as such agent. No power was shown, giving him authority to make any such contract. It is hardly credible that the plaintiff would have become security upon the credit of others, without seeing some authority in the agent to pledge their responsibility; The defendant has not, even now, furnished any evidence that he had authority to make such a contract for Baker, or any other person. He went out as supercargo of the Catharine, but that did not vest him with’authority to make the contract for the tobacco. It was totally unconnected with his duties as supercargo. Indeed, it is very uncertain now, from the evidence in the case, who were his principals; whether Baker alone, or Baker 8r English, or Baker 8? Barker; and the plaintiff would be entirely at a loss to determine who are his principals.
The correctness of the legal position stated to the jury, and by which they were to test the evidence, has not been questioned, 'that if a party would excuse himself from responsibility, because he acted in the capacity of agent,, he ought to show that he communicated to the other party his situation as agent, and that he acted in that capacity, so as to give a remedy over against the person whom he represented as his principal. The testimony in this case furnishes no such evidence. The defendant, therefore, cannot excuse himself on this ground. It is unnecessary to travel through the various items of the accounts; for, if the defendant is at all answerable for the money .paid on the tobacco contract, he is, at least, liable to the amount of the verdict found by the jury. And that he is so answerable is, I think, very clear. The motion for a new trial must, accordingly, ]ae denied.
Jfotion denied.