John Warner Citizen of the State of Pennsylvania John Warner and Company, Citizens of the Same State and William Heald, Jacob Heald, Pennsylvania Samuel Woodward, and Buckner, Citizens of the Same State, Trading Under the Firm of Heald, Woodward and Company, Appellants v. Thomas Martin Citizen of the State of Virginia, Who Survived Spencer Franklin, Also Citizen of the State of Virginia, Lately Trading Under the Firm of Martin and Franklin

• Decision Date: 01 December 1850
• Parties: JOHN A. WARNER, A CITIZEN OF THE STATE OF PENNSYLVANIA; JOHN A. WARNER AND COMPANY, CITIZENS OF THE SAME STATE; AND WILLIAM HEALD, JACOB HEALD, PENNSYLVANIA, SAMUEL WOODWARD, AND A. J. BUCKNER, CITIZENS OF THE SAME STATE, TRADING UNDER THE FIRM OF HEALD, WOODWARD, AND COMPANY, APPELLANTS, v. THOMAS P. MARTIN, A CITIZEN OF THE STATE OF VIRGINIA, WHO SURVIVED SPENCER FRANKLIN, ALSO A CITIZEN OF THE STATE OF VIRGINIA, LATELY TRADING UNDER THE FIRM OF MARTIN AND FRANKLIN
• Court: U.S. Supreme Court

52 U.S. 209

11 How. 209

13 L.Ed. 667

JOHN A. WARNER, A CITIZEN OF THE STATE OF

PENNSYLVANIA; JOHN A. WARNER AND COMPANY, CITIZENS OF

THE SAME STATE; AND WILLIAM HEALD, JACOB HEALD,

RESIDING OUT OF THE JURISDICTION OF THE CIRCUIT COURT OF

PENNSYLVANIA, SAMUEL WOODWARD, AND A. J. BUCKNER,

CITIZENS OF THE SAME STATE, TRADING UNDER THE FIRM OF

HEALD, WOODWARD, AND COMPANY, APPELLANTS,

v. THOMAS P. MARTIN, A CITIZEN OF THE STATE OF VIRGINIA,

WHO SURVIVED SPENCER FRANKLIN, ALSO A CITIZEN OF THE

STATE OF VIRGINIA, LATELY TRADING UNDER THE FIRM OF

MARTIN AND FRANKLIN.

December Term, 1850

THIS was an appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania, sitting as a court of equity.

In the early part of the year 1841, there was a commercial firm in the city of Richmond, Virginia, trading under the name of Martin & Franklin, who were dealers in tobacco and manufacturers of the article. There was at the same time a firm in Philadelphia, composed of the persons named in the caption of this statement, trading under the name of Heald, Woodward, and Company. There was also a firm in New York, trading under the name of Charles Esenwein and Company, although consisting of Charles Esenwein alone; and in Philadelphia there was also a commercial house, known by the name of John A. Warner and Company, although consisting of John A. Warner alone.

To the house of Charles Esenwein and Company in New York, Martin & Franklin were in the habit of consigning manufactured tobacco for sale, as their agents and factors.

In April, 1841, Martin & Franklin opened a correspondence with Heald, Woodward, & Co., which resulted in the latter house becoming the agents of the former, for the purpose of selling their manufactured tobacco, in Philadelphia, as agents and factors.

In April, 1841, Martin & Franklin made the first shipment upon a new account of Charles Esenwein & Co., in New York, and continued, at intervals during the summer, to make more consignments. Their practice was, at each shipment, to draw a draft upon Esenwein & Co., payable in four months, for an estimated portion of the proceeds of sale. Amongst other drafts were the following, viz.:——

1841, May 27, at four months, due September 30, for $800.

1841, June 12, at four months, due October 15, for 700.

1841, July 3, at four months, due November 6, for 300.

1841, July 29, at four months, due December 2, for 850.

These drafts were not paid by Esenwein & Co. at maturity.

The tobacco shipped during the period when these drafts were drawn was the following, viz.:

Statement of Tobacco received by Charles Esenwein & Co. from Messrs. Martin & Franklin, of Richmond, Va., to sell for their account.

1841.

May 12. Received ex schooner Manchester: Whole Boxes. Half Boxes.

36 whole boxes T. P. Martin's 8's lump,

34 do. do. do. 16's lump,

20 do. do. do. 32's lump 90

June 7. Received ex schooner Lynchburg:

20 whole boxes T. P. Martin's long 12's lumps,

16 do. do. H. Wit & Son, 16's lumps,

26 do. do. T. P. Martin's 16's lumps, 62

June 29. Received ex schooner Manchester:

8 whole boxes T. P. Martin's 16's lump,

56 half do. do. 32's lump, 8 56

July 8. Received ex schooner Leontine:

28 half-boxes T. P. Martin's 32's lumps, 28

Aug. 15. Received ex schooner Weymouth:

2 whole and 76 half boxes T. P. Martin's 32's, __2 76

Received in all, boxes 162 160

In August, 1841, Esenwein was in embarrassed circumstances, and sailed for Europe, leaving his business under the management of his clerk, Engelbert Caprano.

On the 3d of September, 1841, the house of Charles Esenwein

& Co. failed. On the day before the failure, Esenwein & Co. were indebted, amongst other persons, to the firm of John A. Warner & Co. of Philadelphia, and Charles Conolly of New York. At some short time before the failure, Warner went to New York and got tobacco out of the store of Esenwein & Co., and in his account with that house the following entries appeared as credits to Esenwein & Co.:

Sept. 2. By sundry notes, $ 11,977.69

" 2. sundries, 27,010.46

" 2. sundries, 2,654.98

" 2. S. Austin's note due Dec. 31-3 Jan. 1842, 435.47

" 2. transfers of Loomis & Hale's account, 120.59

" 2. do. J. M. Brineler's account, 203.00

" 2. do. D. W. Warning's account, 796.85

" 2. do. S. Mayer's account, 1,208.99

" 2. do. J. Barber & Co.'s account, 494.15

" 2. do. A. Snowhill & Son's account, 1,089.75

" 2. do A. Snowhill's account, _____125.53

Amount carried over, $ 97,444.20 $ 95,871.77

Amounts brought forward, $ 97,444.20 $ 95,871.77

Sept. 2. By cash received Aug. 14, 160.00

" 2. To net proceeds of tobacco, 1,198.00

" 2. do. do. of cigars, 45.70

" 2. To difference in bill tobacco,

Sept. 2, 1841 161.69

" 2. By balance, _________ 2,817.82

$ 98,849.59 $ 98,849.59

1841.

Sept. 2. To balance, $ 2,817.82

When the failure took place, Caprano made an assignment to Charles Conolly, and among other things assigned seventeen whole boxes and twelve half-boxes of the tobacco which had been consigned by Martin & Franklin, that being the whole amount of their tobacco then on hand.

On the 6th of September, 1841, the following transaction occurred between John A. Warner & Co. and Heald, Woodward, & Co.

In the account between these two firms, Warner & Co. have a credit entered under date of September 6, as follows:—'Sept. 6. Sundries, $22,441.52.'

This transaction is in part explained in the answer of Heald, Woodward, & Co. 'The defendants, now and at all times, saving all exceptions for further answer to said bill of complainants, say:

'That in the month of September, A. D. 1841, they purchased of John A. Warner, as before they have answered, a large quantity of goods, and, among other things, two hundred and fifty-eight boxes of tobacco, known by the name of Martin's tobacco, and no more; this being the whole number of boxes or half-boxes of tobacco either sold or delivered by said Warner to defendants about that time, branded with the names or initials of complainant, or at all answering the description in complainant's bill, or inquired about therein; that of said tobacco there was redelivered to said Warner before the filing of complainant's bill, or he failed to deliver, one hundred and thirty-four boxes, (as to which 134 boxes of tobacco, the said contract of sale between said Warner and these defendants was by mutual consent annulled and rescinded,) leaving in the hands of, or under the control of, these defendants, at the time of filing of said bill, only one hundred and twenty-four boxes or half-boxes of said tobacco, or the proceeds thereof, and which said one hundred and twenty-four boxes were branded with the name or initials of complainant, as defendants believe, though of this they have no certain knowledge. And these defendants purchased the said tobacco of said Warner about September 6th, 1841, at the following prices, to wit, one hundred and six boxes thereof of lumps 8's, 12's, 16's, being 13,676 pounds, at 12 cents per pound, viz. $1,640.12; and eighteen boxes lumps 32's, at 16 cents per pound, viz. $230.40; making together $1,870.52.

'And they further aver and repeat, that they purchased the same fairly and bon a fide of said Warner, and for full value, and that they had no knowledge whatever at the time, that said tobacco or any part thereof belonged to complainant, nor had they any reason to believe or know it. And further, the defendants say that the price paid by them for said tobacco is truly set forth and alleged as above, and the same was received by them and sold by said Warner to be placed by them to the credit of his account, and in part payment of, and not as security for, a debt due these defendants by said Warner, and which debt is not yet fully paid.'

On the return of Charles Esenwein from Europe, he obtained a reassignment from Conolly of the seventeen whole and twelve half boxes of tobacco which belonged to Martin & Franklin, sold them, and remitted the proceeds to that house in Richmond.

On the 13th of September, 1841, Martin & Franklin wrote to Heald, Woodward, & Co. the following letter:——- 'Richmond, Sept. 13th, 1841.

'MESSRS. HEALD, WOODWARD, & Co., Philadelphia.

'Gentlemen,—I am just from New York, looking after our tobaccos that we had shipped on consignment to Charles Esenwein. Mr. E. Caprano, their clerk, that holds a power of attorney from Esenwein & Co., handed me a memorandum of tobacco sold; amongst those is John Warner & Co., of Philadelphia, 'sold them on the 2d of September, 250 boxes of our tobacco, 234 boxes branded Thomas P. Martin, and 16 boxes branded H. Wit & Son.'

'We have inclosed the memorandum; it is not signed; but Mr. Spear, of New York, will testify to the writing. His attorney informed one of us (Martin) that it was sold for cash, which is not likely, as the house failed on the next day; and we also observed in the assignment made in Philadelphia that Messrs. Warner & Co. are further secured in the first class made soon after. We wish to beg the favor of you to get the opinion for us of some able counsel, whether we can claim this tobacco, fraudulently taken from us under the cover of a cash sale, evidently to secure themselves at our loss. We had made drafts on them, of which about $2,000 has been paid, and they have sold about half that amount to other persons, for which they had heretofore charged a guaranty commission. Any expenses you may have to pay will be cheerfully allowed, by your obedient servants,

MARTIN & FRANKLIN.

'N. B. We have omitted mentioning, in the event the attorney thinks as we do, you will set him about it at once, on our account, for which you will please be responsible for us.

'MARTIN & FRANKLIN.'

To which letter they received the following answer:——

'Philadelphia, Sept. 15/16th,

'MESSRS. MARTIN & FRANKLIN.

'Gentlemen,—Your favor of the 13/15th inst. came duly to hand, and in reply thereto we proceed to give you information in relation to the...