Van Staphorst v. Pearce

Upon an express promise to pay the factor of any one, for the use of the principal, the factor may maintain an action in his own name. Where the debtor of A has made an express promise to pay the debt to A’s factor, the debtor cannot be held as the trustee of A in a foreign attachment.

The declaration in this action was in case upon sundry promises, and contained the following counts: 1. Assumpsit for money had and received. 2. On a bill of exchange, as drawn by Samuel Colder on the defendant, and payable to bearer, with an averment that the plaintiffs are the bearers, of the acceptance of the defendant, &c. 3. On a bill of exchange, as drawn by Blandow and Company on the defendant, payable to the plaintiffs, and accepted by the defendant. 4. On a bill of exchange, as drawn by Samuel Calder on the defendant, payable to the plaintiffs, and accepted by the defendant. At the last November term in this county, the parties submitt/ l the cause to the opinion of the Court, upon an agreed statement, of facts, from which it appears that on the 19th of June, 1803, one Samuel Calder, who was master of the ship Martha Washington, then at St. Petersburg, of which ship the defendant was owner, drew a set of bills of exchange on the defendant, as follows, viz. — “ Bill of exchange for Ro: 25,000. “ St. Petersburg, 19 June, 1803. “ Six months after date, you will pay, for this, my second bill of exchange, the balance of the cargo I have received from Messrs. Blandow if Co., for your account, on board the Martha Washington, according to your letter addressed to me in date of March 16, of this year, the sum of twenty-five thousand rubles, payable a.t Amsterdam, at Messrs. Van Staphorst if Co. “ Signed, Samuel Calder. “ To Mr. David Pearce, Gloucester.” On the 23d of June, 1803, Messrs. Blandow Co. endorsed the said bills to the plaintiffs, who are the persons named therein, as follows: — “ Pay to the order of Messrs. Van Staphorst if Co. value in ac count. St. Petersburg, June 23, 1803. “ Signed, Blandow If Co.” * On the 8th of August, 1803, the plaintiffs, being [*259] holders of said bills so endorsed, sent one of the set to the defendant, enclosed in a letter, in which they request his acceptance thereof; to which the defendant replied by letter of Nov. 28, 1803, saying, “ The bills you hold in favor of Messrs. Blandow if Co. for the Martha Washington’s cargo, I am determined to discharge, by a shipment to you as early as possible in the spring. — The above-mentioned method of meeting these bills I hope will be agreeable.” March 16, 1803. The defendant wrote to Calder a letter, in which he instructs him what articles he is to obtain for his homeward cargo, and adds, “ What money you may want, you can draw for, which will be duly announced.” January 6, 1804. The plaintiffs wrote the defendant, acknowledging the receipt of a sum of money from Messrs. Damen if Van Olivier, in part payment, and urge a provision to be made for the balance of the bills remaining due. January 26, 1805. They acknowledge the receipt of a further sum, and add, “ The balance on the same, due to Messrs. Blandow if Co., and interest since the time this object ought to have been paid, we are requested by Messrs. Blandow Of Co. to claim from you, as they want to have settled this account.” Messrs. Blandow If Co. failed at St. Petersburg, and the defendant was summoned as their trustee in two several actions, in which they were defaulted, before the commencement of this action. And if, upon the facts stated, the Court should be of opinion that plaintiffs are entitled to recover in this action, the defendant agreed to be defaulted; otherwise the plaintiffs were to become nonsuit.