Buchanan v. Curry — 19 Johns. 137

Majority

p. 137

R. and W. Buchanan against Curry.

Headnote

It is not uncitizen of this debt, ‘or^pert with &^aatüL “a”!dtheUpa}S formance Pbe mad® th® alien enemy within this state; the contract having been made be-where i?., a nazenfresiding ¡¡i hifparincí, ject"eddingin tract on the llth of Februa 1812, with v., a British subject, residing in Canada for the deUveiy pLt^of^whkh prior kfth^dí ^a^ofthe isth residue afterwards, on the 30th of June. 1812, to, the agent of C^. amenace ad-within thebünfflw^that such -the°mperformf ana“ legal.

Though a partner, as such, cannot bind his co-partner by a bond, or writing under seal, to comply with an award; yet, where an award is made pursuant to a submission so executed, by one partner, and who, afterwards, accepts the amount awarded in favour of the partnership, and endorses a receipt in full on the award, it is sufficient to bar the co-partnership claim; lor it operates either as-a release by one partner* or as an accord and satisfaction.

THIS was an action of covenant, on a contract made the 11th of February, 1812, between the plaintiffs and defendant, by which the plaintiffs engaged to deliver to the defendant, 8000 feet of oak timber, “at a convenient rafting place, on any of the Salmon rivers, Pi/ce creek, or on the St. Law rence river, at a good rafting place “ to be delivered in all the month of June then next, at any of the aforementioned places.” The defendant covenanted to pay to the r 1 J plaintiffs, for the timber, at the rate of one shilling, Hah- . _ . fax currency, per foot, to wit: Une halt on the 1st ot March, 1812, and the other half on the delivery of the timber. The plaintiffs averred a performance on their part, and assigned, as a breach of the defendant’s covenant, the non-payment of the stipulated price. The defendant pleaded, 1. Non est factum ; 2. Payment of the one half of the price, and as to the other half, that the plaintiffs did not deliver the . . r timber, &c.; 3. A submission and award, &c.; 4. Pay- . . , . « . , , . . . . ment, &c. with notice oí special matter to be given in evii » . Hit j pi' ir dence, embracing all the grounds oí his deience.

The cause was tried at the Franklin circuit, in June, 1820, before Mr. Justice Platt.

To prove the execution of the contract, a witness was called, who proved the band-writing of the subscribing witnesses, one of whom resided in Montreal, and that the other who had resided with one of the plaintiffs, in Franklin coun- , . - . . . 1 , • ty, about a year before the trial, was seen by the witness, just setting out for Williamstown, in Canada, and as the witness understood, had removed there; that the witness understood, that he had left W., but where he had gone the witness did Dot know, nor had he seen him since. The

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witness testified, that he Was well acquainted with the handwriting of the defendant; and that the signature to the conUact was in his proper handwriting. The evidence was objected to, but the judge decided, that it was sufficient to j .l t . prove the contract.

The evidence as to the other facts in the case, are sufficiently stated in the opinion of the Court, as delivered by Mr. Justice Platt. A verdict was taken for the plaintiff, for 1,463 dollars and 77 cents, subject to the opinion of the Court on a case, with liberty to enter a verdictfor the defendant, or for the plaintiffs, for such sum as the Court might direct, and with leave to either party to turn the case into a special verdict, or bill of exceptions.

Z. R. Shepherd, for the plaintiff,

contended, 1. That the evidence of the absence of the subscribing-witnesses to fhe contract, was sufficient to authorize proof of the handwriting of the defendant, by another witness. 2. That the delivery of the timber was proved, to Mel Livingston, who was shown to be the agent of the defendant; and that this delivery was on the Salmon river, below the French mills, and within the county of Franklin. The plaintiffs began to deliver it on the 17th of June, and completed the delivery on the 30th of June, 1812, when the receipt of L., the defendant’s agent, was given, for the remainder of the -timber, agreeably to the contract, to which it refers.

3. Though it appeared, that Walter Buchanan and the defendant, were British subjects, residing in Canada, and R. Buchanan, a naturalized American citizen, residing at French Mills, within this state; yet, admitting the fact that both were alien enemies, they had a right to appoint an agent within the United Slates, to settle their affairs. (Clark v. Morey, 10 Johns. Rep. 69 .)

4. As to the submission and award; the bond of submis,sion was executed by W. B., one of the plaintiffs alone, at C., in Upper Canada; and one partner cannot bind his co-partner by deed, or a submission under seal. Again ; war between the United Stales and Great Britain then existed* by which R. B., the other plaintiff, and the defendant, became enemies to each other, and could not, therefore, law

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fully contract. Besides,- the arbitrators were alien enemies, and could make ho award, binding on R. B. (Kyd on Awards, 242. 2 Mod. 228. 15 Johns. Rep. 57 . Griswold v. Waddington, S. C. 16 Johns. Rep. 16 . 3 Johns. Rep. 188 . 2 Caines’ Rep. 254 . 2 Johns. Rep. 213 .)

Wheeler, contra,

insisted, 1. That the evidence as to the absence of the subscribing witness, who resided within this state, was not sufficient. 2. That the evidence of the delivery of the timber was not sufficient. There was no proof 6f any delivery to the defendant himself. The declaration of war Was on the 18th of June, 1812, and. eo instanti, there was an end tó all further transactions between the parties. A delivery of timber, after that day, was unlawful ; and the 800 dollars which depended on the delivery df the residue of the timber, cannot, therefore, be the ground of an action. It does not appear how much was delivered on the 17th of «Time, but the delivery was not completed Until the 30th of June, 1812.

' 3. One partner may submit a matter to arbitration, so as to bind his co-partner, and it is not averred in the pleadings that the submission was by deed. ( 3 Johns. Rep. 68 . 14 Johns. Rep. 387 . 17 Johns. Rep. 58 .) At the time of the submission, one of the partners was resident in the United States, and the other in Canada. Though the war suspended the partnership, it did not sever their joint interest in choses in action. On principles of commercial policy and convenience, one partner ought to be allowed to bind his co-partner by submission to an award. The defendant performed the award, on his part, by paying the sum awarded against him; and the plaintiffs acquiesced, by accepting and endorsing it on the award. It is, now, too late to object to the award. (2 Bos. & Pull. 338. 2 Caines’ Rep. 254 . 3 Term Rep. 454. 4 Term Rep. 466. 8 Term Rep. 548. 15 Johns. Rep. 57 . 16 Johns. Rep. 461 . Kyd on Awards, 42. 382.) There is no express authority which says, that one partner cannot bind his co-partner by a submission to arbitration.

delivered the opinion of the Court.

On the part of the plaintiffs, I think the contract was'duly proved, and also that they delivered the quantity of timber according to contract, viz. to the defendant’s agent, Niel Livingston, who resided during the spring and summer of 1812, at French Mills, in the county of Franklin. The evidence to establish such agency is clear and satisfactory and the plaintiffs proved a receipt, in the following words, viz. : “ Salmon River, 30th June, 1812. This day was culled by John Hursden, the remainder of the eight thousand feet of square oak timber, agreeable to Walter and Robert Buchanan’s contract with John Curry, bearing date the 11 th February, 1812, and was examined and received by me, according to my advice from Wm. Johnson, Esq. Niel Livingston.” The defendant proved by Joshua T. Cozens, that Walter Buchanan had acknowledged to him, that the defendant had paid the advance money, that is, 800 dollars, payable 1st March, 1812, according to contract. It was proved that Robert Buchanan, one of the plaintiffs, was a naturalized American citizen, and resided at French Mills, in Franklin county : and that Walter Buchanan, the other plaintiff, and the defendant, John Curry, were British subjects, and resided in Canada, during the late war.

The places of delivery named in the contract are so general, that the plaintiffs had an election to deliver the timber within the United States, or in Canada. And it does not appear whether it was actually delivered in Canada, or in the United States. Nor -does it appear how much of the timber was delivered before the declaration of war, (18th June, 1812,) or how much afterwards. A part, however, to complete the contract, was delivered, as appears by the receipt, at" Salmon River, on the 30th June, 1812.”

The first ground of defence was, that the war dissolved tire -contract; and that it became unlawful to fulfil such an agreement between the defendant, who was an alien enemy residing in Canada, and one of the plaintiffs, who was an American citizen resident here.

To have transported the timber into Canada, pursuant to the contract, during the war, would have been unlawful:

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and so far, the contract was dissolved, or restrained, by the change from peace to war. But, upon the supposition, which is well warranted by the proof, that the defendant, an alien enemy residing in Canada, had an agent resident at French Mills, within the United Stales, who received the timber due on this contract, during the war, at places with' in the United States, I see nothing unlawful or inconsistent with the duty of allegiance, in the mutual performance of the contract, in such a manner, during the war. If such a contract had been entered into during the war, it would have been illegal and void. But this agreement appears to have been made before the war, in good faith, and according to the usual course of business. There is no ground for the position taken by the defendant’s counsel, that it was unlawful for the contracting parties voluntarily -to carry this prior agreement into effect, by delivering and receiving the timber within the United States, during the war. The war suspended the remedy by suit on the contract ; but it is not unlawful, voluntarily to pay debts, or perform contracts to alien enemies,' if the payment be made, or the duty be performed in our country.

The rule is founded in public policy, which fdrbids, during war, that money, or other resources, shall be transferred, so as to aid or strengthen our enemies. The crime consists in' exporting the money or property, or placing it in the power of the enemy; not in delivering it to an alien enemy, or his agent, residing here, under the control of our own government.

-Suppose, an American citizen, previous to the war, had contracted to furnish a quantity of flour or cotton to a Bri tish merchant, to be delivered to his agent at the port of Jtfew-York; would a declaration of war between the two nations, render it unlawful to fulfil the contract ? I think not. In such a case, the interests of commerce are perfectly compatible with the rights of war; and public policy does not forbid the transfer. None of the authorities cited, support the doctrine contended for by the defendant on that point.

In the case of Clarke v. Morey, ( 10 Johns. Rep. 69 .) it was decided, that an alien resident in the United States,

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during a war between his country and the United Slate's, may sue and be sued,- as in peach. If he may sué, 'a foriiov’h he may receive payment,- without suit. Emeñgon, (1 Trait. des Ass. 567.) says, “ Les cféÉnces que l’eti'árigér a chez nuüs, lors de la declaration de guerre, stibsistéht en leur entier. S’il est forcé de se retirér, il júi éSt loisible de laisser sa procuration a un atni ptiUr exiger cé qtfi lüi est dtfy et pour actionner ses tiébiteürs é'ti justice.” In Conn v. Penn, and Deniston & M‘Gregor v. Imbrick, (Circuit Court of U. S. Pennsylvania,) Judge Washington decided, thát debts might be paid to the agent of ari alieri éñemy residing here, but that no remittance could bé (nadé during vfrar.

The defendant,- also, relies upon á submission, and award, to bar this suit. It appears, that on the 7th daj7 of Aprils 1813, (during the war,) at Cornwall, iti Upper Canada, Walter Buchanan (oné of the plaintiffs) entered iftto formal bonds of submission to arbitration, with the defendant, of all matters in difference between these plaintiffs átid lite defendant, embracing the very claim now before u¿, Walter Buchanan signed and sealed thé arbitration bond, for Robert Buchanan, aá Well as in his own right; Robert then being a citizen of the United Slates, and resident here. An award was made pursuant to the submission, on the 7th of April, 1813 ; whereby the defendant, John Curry, Was required to pay to the plaintiffs, on account of this timber, 731. 16s., lawful money of Upper Canada, on or before thé lét of June theti1 tiext. The defendant gave in evidénce á receipt, endorsed on the award, in these words, viz: “ Received, Montreal, 20th July, 1813, from Mr. John Curry, 741. 7s. 3d., it being the amount of this award, with interest. Walter Buchanan.”

To this award the plaintiff’s counsel objects, first, that on the authority of Griswold v. Waddington, ( 15 Johns. Rep. 57 .) the war dissolved the partnership between Walter and5 Robert Buchanan; and, 2dly, that Walter could not, as partner, seal a bond of submission, so as to bind his copartner Robert, and that no special authority for that pulpóse was-given, or could be given, by Robert to Waller, during the war. In my judgment, these objections are not well founded. Although the war dissolved the partnership, yet the

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effect wag no greyer than if the partnership had been dig-solved by the mutual agreement of the partners. In that cage, neither of them could apy longer malee any new contract to bind the other; but either of the former partners would have a right to receive payment, or settle the concerns of the partnership. The dissolution is prospective merely, It is true» that, strictly speaking, one partner cannot, as such, bind his copartner under seal, to comply with an award. And it is clear, that Robert Buchanan is not bound by tiffs, technically, as an award. But I think it has the effect of extinguishing all claims on behalf of these plaintiffs arising out of that contract. There was a claim for money due on the contract, as the price of the timber: Waller Buchanan, and the defendant, being together in Canada, could not adjust it; and in order to determine the true balance, they agreed to submit the question to arbitration. The arbitrators reported a sum as due upon the contract; and the acting partner there agreed to accept it, and gave a receipt on the back of the award, declaring that he was satisfied with that adjustment of the claim. Now, it is clear, that the award is binding on Walter Buchanan, whatever aray be its effect as to Robert. In Strangford v. Green, (2 Mod. 228.) the Court said, “ the defendant may undertake for his partner; and having engaged for himself and his partner, to perform the award, notwithstanding the partner is not bound ; yet if he refuses, it, is a breach of the defendant’s promise.” (Kyd on Awards, 42.) I think Robert is also concluded by that award, after payment of the sum awarded, considering it as a compromise, or liquidation of the claim, which Walter was authorized to make, in virtue of his general authority as partner in that contract. Here had not only been an award, but the sum awarded as a full satisfaction for the timber, has been accepted as such by Walter Buchanan. If all this had been done without sealing the submission, it would undoubtedly have concluded Robert, as well.as Waller. The partnership demand would have been extinguished ; and, as it regards this suit, I think the effect is the same, whether the final balance due on the contract was liquidated and paid by mutual agreement of the defendant with one of the partners, or through the in

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tervention of arbitrators. It operates in the nature of a release by one partner, or as an accord and satisfaction. In Bacon v. Dubarry, (1 Salk. 70.) Holt, Ch. J. said, “ "that money paid and accepted, in pursuance of a void award, might be pleaded or taken as an accord with satisfaction.” In my view, therefore, it is immaterial, whether the bonds of submission were duly proved at the trial or not. The receipt of Waller Buchanan, on the award, is in itself sufficient to bar this claim.

We are of opinion, that the defendant is entitled to judg ment.

Judgment for the defendant.