Scholefield v. Eichelberger

Action of assumpsit to recover the balance of an account current for merchandize purchased in England by order of the defendants. The defence was, that the contract was made during the war, and therefore void. By the court: the doctrine is not to be questioned at this day, that during a state of hostility, the citizens of the hostile states are incapable of contracting with each other. To say that this rule is without exception, would be assuming too great latitude. The question has never yet been examined whether a contract for necessaries, or even for money to enable the individual to get home, could not be enforced; and analogies familiar to the law, as well as the influence of the general rule, in international law, that the severities of war are to be diminished by all safe and practical means, might be appealed to in support of such an exception. But at present, it may be safely affirmed that there is no recognized exception, but permission of a state to its own citizens; which is also implied in any treaty stipulation to that effect, entered into with a belligerent. There is no doubt that the liability of a deceased co-partner, as well as his interest in the profits of a concern, may, by contract, be extended beyond his death; but without such a stipulation, even in the case of a co-partnership for a term of years, it is clear that death dissolves the concern.

IN error to the- circuit court of the United States for the district of Maryland. In the circuit court; an action of assumpsit was brought by-the plaintiffs in error for the recovery of one thousand find one' pounds four shillings and eight pence -sterling, with interest; asserted to be due to them by the defendants in error, for merchandize sold and delivered. The declaration was in the usual form. On the trial of the cause, the plain tilts, to maintain the issue mi their pari, offered in evidence two accounts hcade ’ as follows: “ Dr. Messrs Eichelberger and Clemm.in account with Scholefield, Redlcrn and Co.” In these accounts, the first, of which’commences on the 20th of July 1813, the defendants are charged on that day, and at subsequent dates, with sums as-due for goods, postages, expenses and interest; and are' credited with several payménls in 1814,1815, 1816 and 1817: the balance stated tobe due to the plaintiffs on this account, on the 1st of January 1818, appears to be two thousand five hundred and seventy-nine pounds, sixteen shillings. The second account commences January 1, 1818, and contains a credit of eight thousand dollars under date of February 14, 1819; leaving the balance of one thousand and one pounds four shillings and eight pence due on the 1st day of July 1819, the sum for which the action was instituted. The plaintiffs proved that these accounts were delivered to the defendants for settler lent some time in 1819, and that no objections were made to them, and the defendant acknowledged the balance of the accounts to be due, and promised payment of the same. It was also in evidence, that the plaintiffs were British subjects and merchants, and had been such since the year 1807, and had always resided in England. The defendant, to support the issue on his part, offered in evidence the correspondence of the late firm of Eichelberger and Clemm, and J. and W.. Eichelberger with the plaintiffs, commencing on the 2d of February 1813, and terminating on the ,20th of May 1816. The letter of 2d February 1813, from the defendants’ late firm, received by the plaintiffs in error on the 17th June 1813, after stating to the plaintiffs that every thing indicated a determination on the part of the government of the United States to continue the war then existing with England, proceeds to say : “ As such a conviction may reduce the prices of your manufactures considerably, we have prepared an order (which is hereto annexed) for some articles which are only to be purchased in the event of such a reduction. You will perceive that the investment of our money in this w<iy is an uncertain speculation, whatever may be the reduction of prices, for we can form no opinion as to the time when they can be imported into this country; - and you will therefore insure the goods, when bought, against fires. So soon as we are favomod with the invoice, we will transmit, a bill of exchange for the amount. This you may calculate on with certainty.” The subsequent letters of the 13th April 1813, and of the 18th June 1814, contain further orders for the purchase of goods; and by that of the 18th June remittances were made, and expectations of peace are expressed. “ Should this desirable event take place,” the defendants say, “ we shall calculate oil receiving the goods amongst the first that arrive, under full insurance against sea risk.” By a letter of the 22d February 1815, the film of Eichelberger and Clemm communicated the ratification of the treaty of peace, express their expectations of uninterrupted correspondence with the plaintiffs; and they also say, “ the principal object of this letter is, to confirm our former orders, and to assure you that immediate arrangements will be made to remit largely on account of them, with a full reliance that they have been executed on the most favourable terms, and.with the largest discount.” On the 20th of May 1816, they communicated to the plaintiffs the .losses which they have sustained, and their expectations of greater losses by the goods w’hich had been purchased for them during the war not having been sent out in the spring of 181-5, and they offer to ¡return to the agent of the plaintiffs the packages of those goods which remain unsold. Theysay, in that letter, “We are anxious to make you payment;” and they ask that the plaintiffs may be satisfied with the interest.on the balance due to them, as the same may be afterwards remitted on more • advantageous terms than at that date, in consequence of the high rate of exchange. The correspondence of the plaintiffs with Eichelberger and Clemm, from the 9th of August 1813 to the 13th Of August. 1816, was also given in evidence to show the periods in which the transactions between, the parties were carried on. The invoices of the merchandizes shipped by the plaintiffs to the defendants’ late firm, were headed in the* following terms: “ Birmingham, Jlugust 20, 1814. “ Invoice, of sundry merchandizes bought of Scholefield, Redferu and Co. on account and risk'of Messrs Eichelberger and Clemm, of Baltimore, ¿narked and numbered as follows, and consigned to care of Messrs Hughes and Dunca.n, Liverpool.'’ “ Birmingham, March 10, 1815. “Invoice of sundry merchandize bought by Scholefield, Redfern and Co. on account and risk of Messrs Eichelberger and Clemm, of Baltimore, citizens of the United States of America, marked and numbered as follows, and consigned to the care of Messrs Hughes and Duncan, Liverpool.” The defendants also gave in evidence the deposition of William Eichelbérger, which stated, “ That sometime in the spring or summer of,the year 1815, the exact period deponent does not recollect,, he, this deponent, associated in the hardware business with his brother Jesse Eichelberger, who had previously conducted, the same business in company with his brother-in-law, the late Mr John Clemm: That sometime in the autumn of the said year 1815, goods and merchandize arrived in the pprt of' Baltimore from England, which goods and merchandize, this deponent entered at the custom house for Jesse and William Eichelberger: the said Jesse at the time of the arrival of the said goods being absent from the city on an excursion to the country : That the said goods and merchandize were the first that had been received since the death of Mr Clemm, and that the said goods and merchandize were entered in the books of Jesse and William Eichelberger, as' their own goods, and were not at any time afterwards considered or disposed of as the goods of Eichelberger and Clemm. This deponent further saith, that all the goods and merchandize which were received subsequently to the death of Mr Clemm, were disposed of as- if all the orders in relation to them had been given by Jesse and William Eichelberger, and that no part or portion of the proceeds of said goods and' merchandize ever went to the credit of Eichelberger and Clemm, or to the individual estate of Mr Clemm.” The plaintiffs also gave in- evidence, by John S. Skinner, that packets sailed, as cartels, between America and England frequently during the war: That cartels for a time sailed from Annapolis to Falmouth, in England — and that witness was appointed by the president of the United States to superintend the said cartels, and did superintend them from December 1812, until they ceased to run from Annapolis, which happened in about a year after the time aboveméntioned. A multitude of letters on commercial subjects were sent by the ¡said cartels — that all letters sent , by them were examined by t.he witness; that he never detained any letters on commercial subjects merely, but all letters of that description were suffered to go without interruption — that the practice of witness, as above stated, was known to the secretary of state, and approved by him. Upon which evidence the defendant, by his counsel, prayed the court to instruct the jury, that upon the whole evidence, the contract upon which this action is founded, is utterly void, upon principles of public policy, and that the plaintiffs were not entitled to recover. Which instruction the court accordingly gave. The plaintiffs excepted to the charge of the court, and prosecuted this writ of error.