Delaware Ins. Co. v. Delaunie

• Decision Date: 05 January 1811
• Citation: 3 Binn. 295
• Parties: The DELAWARE INSURANCE COMPANY v. DELAUNIE.
• Court: Pennsylvania Supreme Court

3 Binn. 295

The DELAWARE INSURANCE COMPANY v. DELAUNIE.

Supreme Court of Pennsylvania.

January 5, 1811

The owner of goods chargeable with general average, is personally liable for the amount of his contribution, not withstanding he has abandoned to the underwriters.

The supercargo of all the shipments but one on board a vessel, and having also the management of the vessel, joined with the captain in putting in a claim for the ship and entire cargo, on their being captured and libelled as prize and upon the acquittal of the particular adventure, he received it subject to the payment of all the costs expenses, and counsel fees, arising from the capture and trial, which he disbursed out of the proceeds. Held, that he was intitled to an allowance of those costs, & c against the owner, although the owner was in law chargeable only with a part of them.

In cases where interest is not of course, but depends on the conduct of the parties, if the defendant before suit offers to pay as much as is due, and the plaintiff refuses to receive it, the defendant is not liable to pay interest. But if the plaintiff insists on too much, and the defendant offers too little, there is a necessity for the suit, and the defendant must pay interest.

THIS was an action for money had and received, and money paid laid out and expended, in which the following case was stated for the opinion of the court:

" The Sampson, captain Phippen, having sailed for the Havanna, was taken by a British vessel on or about the 1st of October 1805, carried into New Providence, and there libelled as prize. The amount of the several shipments on board was as follows:

P. Delaunie the defendant $ 20,082

J. W. Foussat 33,915

J. Dabadie 3,766

J. S. Duval 1,905 81

J. Warder and son 3,029 40

The following insurances on vessel, freight, and cargo were made:

1. By the plaintiffs in this action, On the ship, owned by Man and Foussat $ 10,000

On goods for J. Warder and son 3,240

for J. Dabadie 3,994

for J. S. Duval 2,020

2 By the North American Insurance Company, On freight 4,800

3. By private underwriters on freight 3,200

To which add the defendant's goods^[a] 20,082

J. W. Foussat's ditto 33,915

81,251

The several persons insured, abandoned their respective interests, and, except the defendant, have been paid for the same as for a total loss, and have made full cessions of the property so insured.

At New Providence, the defendant (who was supercargo of all the shipments except that of J. Warder and son, and also had the management of the vessel) and the captain of the vessel interposed a claim for the ship and the whole cargo; but the ship and that part of the cargo which belonged to the defendant, and to J. W. Foussat, were condemned.

The shipments of Messrs. Dabadie and Duval were reserved for further proof, and finally acquitted.

The shipment of J. Warder and son was acquitted in the first instance.

This shipment was on its acquittal delivered to the defendant, on his paying or securing to be paid all the costs and expenses in consequence of the capture, trial and proceedings. He placed it in the hands of one Perpal, as his agent, to dispose of for the purpose aforesaid, and for the benefit of the concerned. Perpal made sale of it, and its net proceeds amounted to 1025 l. i 8 is. i 3 d., New Prov. currency, equal to 2568 dols. 53 cts. Out of this sum Mr. Perpal, made the payments mentioned in the annexed account amounting to ^[a1] 2243 dols. 53 cts. and he paid the balance 325 dols. to the defendant.

The items in the annexed account are admitted to be right, (as to amount, but without affecting the legal questions submitted to the court) except the charges for sea stores, homeward passages, and expenses from Port Penn, amounting to 85 dols.

On the return of the defendant from New Providence, John W. Foussat on the 25th Sept. 1805, paid to him the sum of 827 dols. 60 cts. as his (Foussat's ) proportion of general average.

Judgment is to be entered for the plaintiffs generally, subject to the decision of the court on the following questions: 1. Whether on such facts as shall be laid before the court, the plaintiffs are intitled to interest. 2. Whether the defendant is intitled to retain the proportion of general average chargeable on the insurances made by the private underwriters, the North America Insurance Company, and by the Union Insurance Company, on the defendant's goods. If when the opinion of the court is given, there shall be any disagreement with respect to the balance due, it shall be settled by John Donnaldson. "

The additional facts laid before the court, upon the question of interest, were contained in the deposition of P. B. Duplessis, who swore that shortly before the bringing of this action, which was in August 1806, he had offered in behalf of Delaunie to pay the plaintiffs 1411 dollars, and some cents, including Mr. Foussat's proportion of average, according to an account made out for the defendant by an accountant; and that he tendered bank bills to that amount to the president of the Delaware Office, and offered to pay to the amount of 500 dollars more, which he had in his pocket of his own money, provided the plaintiffs would come to a settlement, and it should be found that they were intitled to it. But the plaintiffs demanded twenty-six or twenty-seven hundred dollars, and refused to take a cent less.

The sum offered, excluded the general average due by the defendant himself, and the amount of costs and expenses paid out of Warder and son's shipment at New Providence. It included Foussat's average, and the balance received from Perpal, deducting the expenses referred to in the case.

The sum demanded, included Foussat's proportion of average, the whole amount of Warder's shipment (deducting the general average payable by the plaintiffs), and the average due by the defendant himself.

Condy and Rawle for the plaintiffs reversed the order of the questions, and argued, 1. That the defendant could not retain, or in other words, claim an allowance for the general average of any parties except those represented by the plaintiffs. The circumstance of his having received Warder and son's shipment subject to the payment of the whole, is of no importance. He had no authority to receive it at all. He was not the agent for this adventure, nor of the plaintiffs. Before abandonment their goods were liable only for their own debt; and it is clear that after an abandonment to several underwriters, they are not to be considered as joint owners, so that either they or their property can be held responsible for each other's obligations. United Insurance Company v. Scott ^[a] , Holmes v. The United Insurance Company ^[b]. It was not the duty of the supercargo to interpose a claim for Warder and son. The captain alone had authority to do this, and to receive the adventure acquitted, in consequence of there not being a special agent. Any agreement by the defendant to subject Warder and son's goods to costs and charges to which they were not legally exposed, can therefore have no effect. They were bound to pay at the utmost, only a proportion of the costs. Counsel fees are not costs. Indeed, unless there is something grossly fraudulent in the case, the claimant is not exposed even to the costs of court, upon acquittal; and it does not appear that the court of Admiralty thought there was any thing of that sort in the claim for the Warders, or that they restored the goods subject to costs. 1 Rob. Adm. Rep. introd. 5. 6. But how can the defendant avoid refunding what has been paid for his proportion of average? There is no doubt that upon general principles he is liable in this action to the plaintiffs, whose goods, abandoned to them by the Warders, have paid the whole. Birkley v. Presgrave. ^[c] But his having abandoned his own goods to underwriters, is supposed to create an exception. Certainly we are not compelled to look to the underwriters; we are not bound to try his action upon the policy, nor in point of law can we do it. Non constat that he has any claim on them, although we have a very good one on him. Nor are we compelled to look to the goods saved. If general average is due by goods, the law raises a promise by the owner, which is the foundation of a personal suit.

2. As to interest. The tender was 1411 dollars and some cents; and if it had been relied on, the money should have been brought into court; 6 Bac. Abr. 462. H. Tender; for where a debt is not discharged by a tender, the party must shew himself still ready. But it was clearly too small, by excluding the...