Herring & Walker v. Marvin

Headnote

A. dUi.ered to B. the master of foint owner v/itb C. a quantity of wheat,to be car-j-e4 t0 York, and sold there ; and it ivas agreed between A andC. appropriate “the wbea^totbe use f 01* that c- should make the same payment to a. as that is, if tlie on^credfti and notes taken, u. should give Ins notes of thesame tenor to A. and if it sold forcash, pay the amount m b!S'soid^ the ^e?u tiie^smii c0lu’se of trade, and topk il.’s notes payable in ment ■'* a"<iV u. jC^íav Í “uut beí.cre tbe czpiration otyudnys, 1>.failed,¡mu no-came insolvent, and a. afterunaeüonágnmtt uwMiiUotiiat the tixenauge of notes was the accommodation of A. and that the property b the wheat was not vested in 0. who was nut hgitily nor justly responsible for the amount,

THIS was an action of assumpsit, on a promissory , 1 J note, lor 475 dollars and 70 cents, dated December 15, 1807, made by the defendants, payable to the plaintiffs, ninety days after date

The cause was triec before Mr. Justice Tates The cause was tried at the Albany circuit, April, 1807,

. . . r, , At the trial, Keeler testified, that he was master of an Albany sloop, owned by him and the defendants. On the 37th November, 1807, betook on board a quantity of wheat, belonging to the plaintiffs, to be carried to New Tork, and there sold by him. He had also wheat be- . longmg to other persons to sell in New-Tork. After the wheat was on board, it was agreed between the plaintiffs and defendants,' that the witness should appropriate the proceeds of the sale of the wheat to the use of the 1 defendants in Nero-Tork ; and that the defendants should make the same pay to the plaintiffs in Albany, as was received by the witness in New-Tork; by which the witness understood the intention of the parties to be, that the defendants were to give their notes to the plaintiffs, in case the wheat was sold on a credit, payable in ’ . 1 : like manner, and at the same time, as the notes of the purchasers in New-Tork ; but if the sale should be for money, then the defendants were to pay the cash to the plaintiffs, as soon as the information of the sales was received m Albany. In the bill of lading it was mentioned J ° that the proceeds of the wheat wer.e to be paid to the , , . 0 defendants ; ana the master nací no other ms true cions from the plaintiffs. On his arrival at New-Tork, one of the plaintiffs ivas there, and directed the master to sell

the wheat, as he had not leisure to attend to it. The master sold the wheat of the plaintiffs, and also what belon§ed to tbe otber shippers, to John Townsend, at 90 days credit, and took his notes payable to different persons, who were creditors of the defendants, and to whom he was requested to pay the proceeds, and which notes were received, to be passed to the credit of the defendants, when paid. About the 22d December, the vessel returned to Albany ^ and the plaintiffs and defendants being informed of the manner in which the wheat had been sold, the defendants gave the note in question to the plaintiffs, corresponding in date and time of payment, with the note of Townsend. The wheat was sold in the usual course of the trade; and the master, when at New-Tork, considered himself bound to follow the directions of the plaintiff, Walker, who came on board, before the wheat was sold, hut gave him no particular instructions as to the sale. The whole cargo was sold together, and the plaintiffs paid the master, on his return to Albany, the amount of freight. At the time of the sale, Townsend was a large dealer in wheat, and in good credit. He failed soon afterwards, and the news of his failure reached Albany about the first of January, 1808, and he was notoriously a bankrupt before his notes became due. The master was directed by the defendants to sell the wheat for cash, if he could ; but the plaintiffs gave him no instructions.

Two witnesses for the plaintiffs testified, that they had carried wheat, in November, 180/, for the plaintiffs to New-Tork, for sale, and the plaintiff, Walker, who was there, charged them not to sell to John Townsend on credit.

A verdict was taken, by consent, for the plaintiffs, subject to the opinion of the court, on a case containing the facts above stated ; and if the court should be of opinion for the plaintiffs, judgment was to be rendered on the verdict, otherwise, it was to be set aside and a judgment of nonsuit entered.