Bevan v. Cullen

• Decision Date: 22 January 1847
• Citation: Bevan v. Cullen, 7 Pa. 281 (Pa. 1847)
• Parties: BEVAN <I>v.</I> CULLEN.
• Court: Pennsylvania Supreme Court

Page 281

7 Pa. 281

BEVAN v. CULLEN.

Supreme Court of Pennsylvania.

January 11, 12, 1847.

January 22, 1847.

Jan. 11, 12.

IN error from the District Court of Philadelphia.

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C. Ingersoll, for plaintiff in error.—The charge of the court excludes all but the item for the duties from consideration; the other items were questions for the jury, whether paid as stated, or properly chargeable. But the radical error is in assuming the acts of Bevan & Humphreys bound Curcier. They were but nominal owners, while he was the real one, which was known to Cullen, James & Co., with whom he was in continual correspondence. They could only act for their own interests, or, at the furthest, so as not to affect injuriously that of Curcier. Their situation was like that of mortgagor and mortgagee. Besides, the act of Cullen, James & Co., as to the vales, was a fraud; they bought paper at a depreciation, with which they paid a debt for us, and then charged us with the nominal amount; Sharp v. Emmet, 5 Whart. 288; and this always is an excepted case. The defendants also, as the evidence showed, were beyond seas.

McMurtrie and F. W. Hubbell, contrà.—The plea of the statute of limitations went to the whole action. To avoid that, the plaintiffs replied merchants' accounts, on which issue was joined. If then there was an account stated, they were not within the exception; Toland v. Sprague, 12 Peters, 300; Ramchander v. Hammond, 2 Johns. 200. Absence beyond seas, or fraud undiscovered, are matters of replication; Clark v. Hougham, 3 D. & R. 322; S. C., 2 Barn. & Cress. 149; Brown v. Agnew, 6 Watts & Serg. 238; South Sea v. Wymondsell, 3 P. Wms. 144. The issue being then simply — were the matters complained of merchants' accounts? this court can only look to the correctness of the decision, as it applied to the pleadings; McCulloch v. Norris, 5 Barr, 285. An account, when stated, being no longer merchants' accounts, was this stated, and when? An implied assent, without acts, is sufficient, if a reasonable time elapse, but any positive act of assent is at once effective. Here the balance was drawn for, or ordered to be shipped, on the 10th March. This is the very act put as an example, in Toland v. Sprague, 12 Peters, 335; Elliott v. Walker, 1 Rawle, 128. So an entry into a house, without objection to a bill for fixtures, makes the bill a stated account; Salmon v. Watson, 4 J. B. Moo. 73. Upon the issue joined, the judge was then clearly right. The plaintiff relies on the equitable interest of Curcier. That is not averred, nor would it aid, since it would be an impertinence on the record; Commonwealth v. Lightner, 9 Watts & Serg. 117; 5 Watts, 68; and he must stand or fall by the title of the legal plaintiff; 2 Barr, 52; McEuen v. Girard, 2 Rawle, 311; as must all cestuis que trust, unless there be collusion: and the parties here are the proper ones; Griffith v. Ingledew, 6 Serg. & Rawle, 429. He further sets up ignorance. But he knew we claimed for all payments and charges. It was for him to show error; Brown v. Agnew, ut sup., in which he failed as to the vales, and there his own evidence shows he knew that such a profit could be made under the custom of the country, and that we declined allowing him any part of it.

Jan. 22. ROGERS, J.

The plaintiff declared for money had and received, and on an account stated. Pleas, non assumpsit; statute of limitations, account stated, absque hoc, a promise within six years. Replication, merchants' accounts. Rejoinder, not merchants' accounts; and on this, issue was joined. The principal issue on which the cause was tried, and to which the charge was directed, was merchants' accounts. In the charge we perceive nothing wrong. The objection on which reliance is placed, is that the account-sales was not transmitted to Curcier; but to this allegation the answer is altogether satisfactory. Bevan and Humphreys were the legal proprietors of the consignment, and, so far as concerns the interest of Curcier, were his authorized agents. Curcier had but a contingent interest in the shipment, being entitled to the proceeds, if any, after paying Bevan and Humphreys the full amount of their advancement. By the well-settled principle of law and...