Vasse v. Smith

• Decision Date: 01 February 1810
• Citation: 6 Cranch 226,10 U.S. 226,3 L.Ed. 207
• Parties: VASSE v. SMITH
• Court: U.S. Supreme Court

10 U.S. 226

6 Cranch 226

3 L.Ed. 207

VASSE v. SMITH.

February Term, 1810

ERROR to the circuit court for the district of Columbia.

The declaration had two counts; first, a special count, charging the defendant Smith, who was a supercargo, with breach of orders; second, trover.

The first count stated that Vasse, the plaintiff, was owner and possessed of 70 barrels of flour, and, at the instance and r equest of the defendant, put it on board a schooner at Alexandria to be shipped to Norfolk, under the care, management and direction of the defendant, to be by him sold for and on account of the plaintiff, at Norfolk, for cash, or on a credit at 60 days, in good drafts on Alexandria, and negotiable in the bank of Alexandria. That the defendant was retained and employed by the plaintiff for the purpose of selling the four as aforesaid, for which service the plaintiff was to pay him a reasonable compensation. That the defendant received the flour at Alexandria, put it on board the schooner, and sailed, with the flour under his care and direction, to Norfolk; 'yet the defendant, not regarding the duty of his said employment, so badly, carelessly, negligently, and improvidently behaved himself in said service and employment, and took such little care of the said flour by him so received as aforesaid, that he did not sell the same, or any part thereof, at Norfolk, for cash, or on a credit of 60 days for drafts on Alexandria, negotiable in the bank of Alexandria, but the said defendant, on the contrary thereof, by and through his own neglect and default, and through his wrongful conduct, carelessness and improvidence, suffered the same, and every part of the said 70 barrels of flour, in his possession as aforesaid, to be embezzled, or otherwise to be wholly lost, wasted, and destroyed.'-

The second count was a common count in trover for the flour.

The defendant, besides the plea of not guilty, pleaded infancy to both counts; to which last plea the plaintiff demurred generally.

The court below rendered judgment for the defendant upon the demurrer to the plea of infancy to the first count; and for the plaintiff upon the demurrer to that plea to the second count. Upon the trial, in the court below, of the issue of not guilty, to the count for trover, three bills of exception were taken by the plaintiff.

The first bill of exceptions stated, that the defendant offered evidence to prove that the flour was consigned and delivered to the defendant by the plaintiff under the following letter of instructions.

'Mr. Samuel Smith—Sir—I have shipped on board the schooner Sisters, Captain _____, bound to Norfolk, 70 barrels of superfine flour, marked A. V. to you consigned. As soon as you arrive there I will be obliged to you to dispose of it as soon as you can to the best advantage for cash, or credit at 60 days in a good draft on this place, negotiable at the bank of Alexandria. I should prefer the first, if not much difference; however, do for the best of my interest.

(Signed) 'Amb. Vasse.'

And that the defendant received the flour in consequence of that letter of instructions, and upon the terms therein mentioned. That the flour was not sold by the defendant at Norfolk, but was shipped from thence by him, without other authority than the said letter of instructions, to the West Indies, for and on account of one Joseph Smith, as stated in the bill of lading, which was for 398 barrels, 70 of which were stated in the margin to be marked A. V., 198 I. S., 100 D. I. S., and 30 P. T.

That the defendant when he received the flour, and long after he shipped it, was an infant under the age of twenty-one years. Whereupon the court, at the prayer of the defendant, instructed the jury that if they found the facts as stated, the defendant was not liable upon the count for trover.

The second exception was the admission of evidence of the defendant's infancy.

The third exception stated that, 'upon the facts aforesaid, (the facts in the first bill of exceptions mentioned,) the plaintiff prayed the court to instruct the jury that if they shall be of opinion that the defendant was under the age of twenty-one years, and between the age of nineteen and twenty years, and that the defendant of his own head shipped the flour to the West Indies, in a vessel which has been lost by the perils of the sea, and that the said shipment was made with other flour, on account of his father Joseph Smith, in such case the defendant has thereby committed a tort in regard to the plaintiff, for which he is liable in this action, notwithstanding his infancy aforesaid, which instruction the court refused to give.

The verdict and judgment being against the plaintiff, he brought his writ of error.

E. J. Lee and C. Lee, for the plaintiff in error.

1. The infancy of the defendant was no bar to the first count, because it was a count in tort, and not upon contract, and infants are liable for torts and injuries of a private nature. 3 East, 62. Govett v. Radnidge and others. 3 Bac. Abr. 132. Noy, 129. Roll. Abr. 530. Fearnes...