Mauri v. Heffernan

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 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- ' 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 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-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’? 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 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 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 , - 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 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 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. ■ , .