Henry Toland, Plaintiff In Error v. Horatio Sprague

• Citation: 9 L.Ed. 1093,12 Pet. 300,37 U.S. 300
• Parties: HENRY TOLAND, PLAINTIFF IN ERROR v. HORATIO SPRAGUE
• Decision Date: 01 January 1838
• Court: United States Supreme Court

37 U.S. 300

12 Pet. 300

9 L.Ed. 1093

HENRY TOLAND, PLAINTIFF IN ERROR v. HORATIO SPRAGUE.

January Term, 1838

[Syllabus from pages 300-302 intentionally omitted] ERROR to the circuit court of the United States for the eastern district of Pennsylvania.

This action was commenced on the fifth day of August, 1834, by the plaintiff in error, by process of foreign attachment, in the circuit court for the eastern district of Pennsylvania. The writ of attachment stated the defendant, Horatio Sprague, to be a citizen of the state of Massachusetts, and the plaintiff to be a citizen of the state of Pennsylvania. The attachment was served on the property of the defendant on the sixth day of August, 1834, in the hands of Mr. John M'Crea, Mr. S. Brown, and Mr. P. Lajus, residents in the city of Philadelphia. At the following term of the circuit court, the counsel for the defendant moved to quash the attachment; which motion was overruled by the court.

The record showed that Horatio Sprague, although stated to be a citizen of the state of Massachusetts, was at the time of the commencement of the suit, and for some years before, had been a resident at Gibraltar; where he was extensively engaged as a merchant. The defendant entered special bail to the attachment; and having appeared and pleaded to the same, the case was tried by a jury on the twenty-first day of November, 1836; and a verdict, under the charge of the circuit court, was rendered for the defendant, on which a judgment was entered by the court.

The plaintiff at the trial took a bill of exceptions to the charge of the court, stating in full all the evidence given to the jury in the case. The plaintiff prosecuted this writ of error.

The plaintiff declared in assumpsit, on three counts against the defendant: First, charging the delivery of certain articles of merchandise, upon a promise to account and pay over the proceeds of the sale of the same; alleging a sale thereof by the defendant, and a breach of promise, in not paying or accounting for the same. Second, a count in indebitatus assumpsit: and third, on an account stated: The third count was afterwards, on the application of the plaintiff to the court, struck out of the declaration. The defendant pleaded the general issue, and also the statute of limitations. The plaintiff replied that, at the time of the transactions with the defendant, in which this suit was brought, the defendant was a merchant and the factor of the plaintiff, and 'as such had the care and administration of the money, goods, wares, and merchandise, in the said declaration mentioned, of the said Henry; and he merchandised and made profit of for the said Henry, and to render a reasonable account to the said Henry, when he, the said Horatio, should be thereunto afterwards required; and that the said money, in the said several promises and undertakings in the said declaration mentioned, became due and payable on trade had between the said Horatio and the said Henry, as merchants and merchant and factor, and wholly concerned the trade of merchandise between him, the said Henry, as a merchant, and the said Horatio as a merchant and factor of him, the said Henry, to wit, at the district aforesaid: and the said Henry further says, that no account or accounts whatever of the said money, goods and merchandise, in the said declaration mentioned, or any part thereof, was, or were ever stated, settled, or adjusted between him the said Henry.'

To this replication the defendant rejoined, stating that he was not the factor of the plaintiff; nor did the said money, in the said several supposed promises and undertakings, in the said declaration mentioned, become due and payable in trade had between the said Horatio Sprague and the plaintiff, as merchant and merchant and factor, in manner and form as the plaintiff had alleged.

The bill of exceptions set out at large the evidence given on the trial of the cause. It consisted of a letter, dated Philadelphia, September, 25, 1824, from the plaintiff to Charles Pettit, by which certain goods and merchandise, the property of the plaintiff, shipped on board of the William Penn, bound to Gibraltar, was consigned to him for sale, and stating the manner in which returns for the same were to be made; letters from Charles Pettit to the plaintiff, relative to the shipment, and a statement of remittances made to him by Charles Pettit, with an account sales of some of the merchandise; also two bills of exchange, one for five hundred and thirty dollars seventeen cents, the amount of the proceeds of sales of eleven hogsheads of tobacco, and a bill of exchange for one thousand dollars, both drawn by Horatio Sprague, the defendant, on persons in the United States, to the order of Charles Pettit, and by him endorsed to the plaintiff.

By a letter from Charles Pettit to the plaintiff, dated at Gibraltar, December, 1824, after communicating the sales of the eleven hogsheads of tobacco, and the enclosure of the bills, and stating that the bill for one thousand dollars was to be considered as an advance on his shipment, he informed the plaintiff:

'I shall sail from this to-morrow, in the ship William Penn, for Savannah, and have left the following instructions with my friend Mr. Sprague, regarding your property left by me in his hands: 'With respect to the gunpowder tea, cassia, and crape dresses, shipped by Henry Toland, you will please to dispose of them as you may think most for the interest of the shipper, and remit the amount to him, in bills on the United States; forwarding me account of sales of the same."

By a letter addressed by Charles Pettit to the defendant, Mr. Sprague; written at Gibraltar, on the 18th December, 1825; he says, among other things:

'By your account current rendered this day, a balance stands against me of five thousand five hundred and seventy-four dollars thirty-one cents; to meet which you have in your possession 550 barrels superfine flour, on my account entire, my half interest of 372 barrels flour; an invoice of crapes, &c. amounting to two thousand and twenty dollars; 100 ten-catty boxes gunpowder tea; 500 bundles cassia; and 2 cases super satin Mandarin crape dresses, containing 101 dresses.

'With respect to the gunpowder tea, cassia, and crape dresses, shipped by H. Toland, you will be pleased to dispose of them as you may think most for the interest of the shipper, and remit the amount to him in a bill on the United States; forwarding me account sales of the same.'

On the 6th of January, 1825, the plaintiff wrote to the defendant, from Philadelphia, 'I am expecting soon to hear the result of my shipment by the William Penn, and hoping it will be favourable.'

On the 22d February, 1825, the plaintiff addressed the following letter to the defendant:

'Philadelphia, February 22, 1825.

'MR. HORATIO SPRAGUE, Gibraltar.

'Dear Sir,—By the ship William Penn, I consigned to Mr. Charles Pettit 100 boxes gunpowder tea, a quantity of cassia, 11 hogsheads Kentucky tobacco, and 2 cases Mandarin robes. I directed Mr. Pettit to make the returns of this shipment immediately on his arrival at Gibraltar, as follows: If quicksilver could be had at forty cents, then the whole amount in said article; if not, to ship the whole amount in dollars, by the first vessel for this port, or New York; or if good bills of the United States could be had on more favourable terms for a remittance, then to make the return in bills. Mr. Pettit promised a strict compliance with all these things; but, since the sailing of the William Penn from this port, I have never received a line from him. I have heard of his arrival in Savannah, and of his proceeding to Charleston; but I have not yet been favoured with a single letter from him.

'As my property may be left in your hands by him, unsold, I beg of you to follow the directions given to him, as herein detailed, and make the remittance direct to me. I have particularly to beg your attention to this matter, and to remit as early as possible.'

The bill of exceptions also contained letters from the defendant to the plaintiff, written at Gibraltar, commencing on the 18th January, 1825, to February 22, 1827; and other correspondence of the plaintiff with the defendant, up to an anterior date.

The letters of the plaintiff assert the liability of the defendant to him for the whole amount of the shipment made to Charles Pettit; deducting the two bills of exchange; one for five hundred and thirty dollars seventeen cents, and the other for one thousand dollars; the balance of the sales being one thousand five hundred and seventy-nine dollars.

The letter from the defendant to the plaintiff, of the 18th January, 1825, informs the plaintiff, 'that Charles Pettit had left Gibraltar on the 19th of December, and had placed in his hands, for sale for his account, an invoice of gunpowder tea, cassia, and crape dresses; with directions to dispose of them as he may judge most for his interest; which shall have my best attention.'

Letters written afterwards inform the plaintiff of the state of the markets at Gibraltar; and on the 7th of June, 1825, the defendant wrote to the plaintiff, 'I have closed the sales of the crapes and cassia, left by Mr. Pettit some time since; and settled his account.'

On being informed by the plaintiff, that he was held liable to him for the proceeds of the shipment, per the William Penn, the defendant addressed the following letter to the plaintiff:

'Gibraltar, October 24, 1825.

Dear Sir,—I have just received your letter of 12th September, which I hasten to reply to. It would appear by your letter, that Mr. Pettit's agency here was not so full as his own instructions to me gave me to expect. The property which he has brought and consigned to me at various times, has ever been delivered over to me with invoices, in his own name; and I have ever been punctilious in following his instructions, sometimes in remitting to one, sometimes to another, and on...