Summary
This was a special action on the case in which the plaintiff declared as follows : '
“1. For'that, whereas, on the 3d of July, in the year of our Lord 1795, at the city of New York, and in the ' fifth *ward of the said city,' and within the’county of [*175] New York, in consideration that W. L. in his lifetime, at the special instance and request of the said defendant had caused to be delivered to the said defendant, divers goods, wares and merchandizes of him the said W. L. to be transported, carried, and conveyed by the said defendant, in a certain ship or vessel, whereof the said defendant was then master and commander, from the port of New York to Bourdeaux, in the- republic of France, and there, to wit, at the port of Bourdeaux. aforesaid, to be sold by the said defendant for the said W. L. (the perils and- dangers of the seas duly excepted,) for a certain price or reward therefor, to be paid by the said W. L. to the said defendant, he the said defendant, then and there undertook and faithfully promised the said W. L. in his lifetime, safely and surely to transport, carry and convey the said goods, wares" and merchandizes, from the said port of New York to Bourdeaux, in the republic of France, and there, to wit, at the port of Bourdeaux. in the republic of France to sell and dispose of the said goods, wares and merchandizes, to and for the use of the said W. L., and although the said defendant afterwards, to wit, on the same day and year aforesaid, at New York, at the city, ward, and county aforesaid, had and received the said goods, wares and merchandizes : and although the said defendant did afterwards, to wit, on the 1st day of October, 1795, arrive with the said goods, wares and merchandizes, on board the said ship, whereof the said defendant was then master, at Bourdeaux, in the republic of France ; yet the said defendant not regarding his said promise and undertaking, did not sell or dispose of the said goods, wares and merchandizes, for the said W". L. in his lifetime though often requested so to do by the said VV. L. in his lifetime and by the plaintiff since his death, afterwards, to wit, on the 1st day of May, 1797, at the city,ward and county aforesaid; but the defendant always refused and still refuses so to do.
“ 2. And whereas, the said Tv. L. in his lifetime, to wit,' on the 3d day of July, 1795, at the city, ward and [*176] county ^aforesaid, at the special instance and request of the said defendant, shipped in good order, and well conditioned, in and upon the . good ship called the Iris, whereof the said defendant was then master, then riding at anchor in the harbor of New York, the goods and merchandizes following, to wit, sixty boxes of turpentine soap, of the value of 1000 dollars, current money of New York, from thence to be transported in like good order and condition,-by the said defendant, to the port of Bourdeaux, in the republic of France, (the dangers of the seas only excepted,) he, the said W. L. paying therefor, at the rafe of six pounds sterling, (which is equal to 26 dollars and 66 cents, current money of New York,) by the ton, with primage and average accustomed ; and there to be sold by the said defendant for the said W. L. the said defendant receiving for his trouble the usual commissions in such case ; the said defendant, in consideration of the premises, afterwards, to wit, on the same day and year aforesaid, at the city, ward, and within the county aforesaid, assumed upon himself and to the said W. L. in his lifetime, then and there faithfully promised that he, the said defendant, the said goods and merchandizes last mentioned) from thence, would transport in like good order, and well-conditioned, (the dangers of the seas only excepted,) and on his, the defendant’s arrival at Bourdeaux, in the republic of France, would sell and dispose of the said goods and mei> chandizes last mentioned, and account with the said W. L. for the same ; and although the ship aforesaid, with the goods and merchandizes aforesaid therein loaded, afterwards, to wit, on the first day of October, 1795, at Bourdeaux, in the republic of France, to wit, at the city, Ward, and within the county aforesaid, safely arrived, and although the dangers of the seas did not hinder; and although the said W. L. in his lifetime, and the plaintiff, always since his death hitherto, were ready to pay the said defendant, according to the rate aforesaid, and his said commissions, with primage and average, for the transportation, and selling of the goods and merchandizes. Nevertheless the said defendant contriving and intending the said W. L. in his lifetime, and the plaintiff, after the death of the said W. L. to ^deceive [*177] and defraud, the goods and merchandizes aforesaid did not sell or dispose of, nor did he account to the said W. L. in his lifetime for the same, or to the plaintiff, after the death of the said W.L. although the said defendant was often requested by the said W. L. in his lifetime, and by the plaintiff, since his death, to wit, on the 1st day of May, 1797, but to account for the same the said defendant hath hitherto, altogether refused, and still doth refuse,” &c.
The third count varied from the second only in stating that the defendant undertook to invest the proceeds in the article of brandy, and to remit the same to the plaintiff.
To these the common money counts were added. Plea the general issue.
■ The action was tried before Mr. Justice Hobart, at a circuit court held in the city of New York in December, 1797, On the trial the plaintiff gave in evidence a bill of lading signed by the defendant, in the words following;
“•Shipped in good order and well-conditioned, by William Lawler, in and upon the good ship called the Iris, whereof is master, for the present voyage, John Keaquick, now riding at anchor in the harbor of New York, and bound for Bourdeaux, to say, sixty boxes turpentine soap, No. 1, to No. 60, being marked and numbered as in the margin, and are to be delivered-in like good order and well-conditioned at the aforesaid port of Bourdeaux, (the danger of the seas only excepted,) unto the said John Keaquick, or to his assigns, he or they paying freight for the said sixty boxes soap at the rate of six pounds sterling per ton, with primage and average-accustomed. In witness whereof, the master or purser of the ship hath affirmed to three bills of lading, all of this tenor and date, the one of which bids being, accomplished the others to stand void. Dated in New York .the 3d day of July, 1795.
“ Signed John Keaquick ” The plaintiff then produced a witness who testified, that the defendant had told him that' he arrived in safety [T78] *with the soap mentioned in the bill of lading at ■Bourdeaux, but could not sell it there, and therefore left it for sale with a Mr. Jones, a merchant at that place.
The plaintiff then offered to prove the price of soap of the like quality at the city of New York, at the time of the shipment, as the measure of damages which he was entitled to recover, which evidence was objected to on the part of the defendant, but was admitted by the judge, and the value in the market at New York was accordingly proved.
The defendant moved for a nonsuit On the general ground, that the evidence did not support any of the counts contained in the declaration,, which motion was -overruled; and the judge charged the jury that the defendant, having accepted the office of factor generally 'was guilty of a default in not disposing of the goods at Bourdeaux, or returning them to the plaintiff; that he was properly chargeable in this form of action, and that the price of the article at. the port of New York,, was1 the just criterion of damages, - •
The jury found accordingly for the plaintiff, with damages equal1 to the value of the article in the market at New York, without any deduction.
On a motion for a new trial, the following points' were argued: ■
1st. Whether the defendant had incurred any default so as to render him at.all liable to.the plaintiff?■
2d. Whether -the value of the gooffs at New York or Bourdeaux, ought to constitute the rulé of damages?/'
3d. If the value at Bourdeaux be the proper rule, whether primage, average and freight, ought not tobe deducted?
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
