711*] *OF THE RIGHTS OF AN AGENT AGAINST HIS PRINCIPAL. D'ARCY v. LYLE. In the Supreme Court of Pennsylvania. MARCH 29, 1813. [REPORTED, 5 BINNEY, 441-455.] Damages incurred by an agent, without his own fault, in the management of the principal's affairs, or in consequence of such management, must be borne by the principal. THIS was an action of indebitatus assumpsit, in which the plaintiff declared for money paid, laid out ard expended, money lent and advanced, money had and received, and work, labor, and services. It was tried before YEATES, J., at a nisi prius in December last, when a verdict was found for the plaintiff, damages $3500, and upon a motion by the defendant for a new trial, his honor reported the facts to be as follows: On the 4th of August, 1804, the plaintiff, who was then about to proceed to Cape Francois upon commercial business, received from the defendant a power of attorney to demand from Suckley & Co., at the Cape, who had been the defendant's agents, all his goods remaining unsold in their hands, and to settle by compromise or in any manner the plaintiff thought most beneficial, all accounts of the defendant with that house. On the voyage, the plaintiff, in consequence of being chased by a French privateer, threw overboard, among other papers, the power of attorney. He stated this fact to Suckley & Co., upon his arrival, who consented to deliver up the goods upon his promising to pay a balance which they alleged to be due from the defendant; and this being assented to by the plaintiff, they proceeded to deliver the goods. Before the delivery was complete, one Thomas Richardson attached them with other goods of Suckley & Co., to secure a debt due by them to the house of Knipping & Steinmetz, of Charleston, for whom he was agent. The plaintiff interposed a claim on behalf of the defendant; and on the 26th of November, 1804, the Chamber of Justice decreed that he should retain possession of the merchandise, on his entering into a recognizance in the sum of $2089, conditioned to produce within four months an authentic letter of attorney from the defendant,* or on [*712 default to pay Richardson, as the agent of the Charleston house, the said amount, which was the invoice value of the merchandise. The recognizance was given on the 30th of November, and on the 6th of December following, the plaintiff personally appeared in the clerk's office of the Civil Tribunal, where it was entered, and caused an act to be made, setting forth, that his recognizance or submission in November should be null, as he had received the power of attorney, and notified it to Richardson. In November, 1805, the plaintiff having sold the goods, forwarded an accountcurrent to the defendant, making the net balance $2509.60. On the 1st of December, 1805, he, by letter, directed the defendant to pay over to a friend all his funds, after deducting the balance due to himself; and on the 19th of April, 1806, having had some misunderstanding with the defendant, he wrote his final letter, closing his correspondence, and declining any further concern with him. Up to this time Dessalines was emperor, and favored the plaintiff. In March, 1808, the powers of government at the Cape being in Christophe, who was the friend of Richardson, and the plaintiff continuing to reside as a merchant at the Cape, Richardson instituted a suit against the plaintiff in the Tribunal of Commerce, to recover from him the value of the goods, which by the decision of the Chamber of Justice had been decreed to him as the defendant's agent in 1804. The amount of the claim was $3000, which by a memorial presented by the plaintiff to the tribunal (no part of the record of this court being produced), appeared to be founded on an alleged promise of the plaintiff to pay so much for Suckley; but in the memorial the plaintiff denied the promise, asserted that this was no other than the transaction about the security to produce a power of attorney, that he was no longer an agent for Lyle, and had settled the matter with him, and that Richardson was endeavoring to make them change the just and wise decision made more than three years before. On the 14th of May, the Tribunal of Commerce gave judgment for D'Arcy. Richardson appealed to the Civil Tribunal of the first district of the province of the North, sitting at the Cape. That court on the 1st of June confirmed the sentence of the lower court. Richardson had previously applied to the president, Christophe, who interfered in the proceedings, and on the 31st of May, sent an order for the imprisonment of D'Arcy's lawyer, who was tied and sent to the fort. To this another order succeeded, that D'Arcy and Richardson should fight each other, and that the issue of the combat should be fatal to one or the other. A friend of D'Arcy waited upon Christophe, remonstrated against the order, and procured the commander of a British vessel of war then in the harbor, *to do the same; but the president in*713] sisted upon the combat, unless D'Arcy would pay to Richardson the sum claimed as the value of the goods. D'Arcy having determined not to pay the money, the parties met, but neither of them was injured. On the same day another order came from Christophe, that D'Arcy and Richardson should again fight at six o'clock on the following morning, and that he, Christophe, would be there himself to see the affair settled. The friends of D'Arcy, deeming it dangerous for him to remain longer at the Cape, prevailed upon him to attempt his escape; but he was intercepted by the president's order. The same friends then advised him to pay the money, and preserve his own life, that of his lawyer, and the judges, all of whom were in danger from the parts they had taken. The plaintiff still refused. About dusk of the same evening, Christophe sent for D'Arcy, and had a conversation with him, the purport of which was not in evidence; but on the next day, after the judgment of the lower court had been confirmed, D'Arcy in open court retracted his defence, consented that both judgments should be reversed, and that his memorial should be burnt by the public agent, and that he should be condemned to pay Richardson the $3000 he claimed, and the He retracted his oath also, that he owed Richardson nothing, because as the record of the court set forth, Richardson had since made him remember some facts his memory did not furnish him when he took the oath. The court accordingly reversed the judgments, condemned D'Arcy to pay Richardson the $3000,"for so much he had engaged to pay him for Suckley & Co., for merchandise which the latter had delivered to him as belonging to Mr. James Lyle, whom the said D'Arcy represented, for which the tribunal, do reserve to Mr. D'Arcy his rights, that he may prosecute on the same if he thinks proper against Lyle or Suckley." On the 22d of June, D'Arcy paid the $3000, and the costs. Judge YEATES charged the jury, that if they were satisfied the plaintiff individually promised to pay Richardson the $3000, he could not recover. But the record showed, that there was a review of the suit in 1804, respecting the goods of the defendant received from Suckley & Co., as the judgment referred the plaintiff to the defendant for compensation. The plaintiff was in no fault; he stood out until the safety of all concerned in the business was endangered. He did not pay voluntarily. The jury must decide whether the loss arose from his private engagement, or from his having received the goods as agent of the defendant. If they were satisfied that the money was extorted from the plaintiff as the defendant's agent, he might recover under the count for money paid to the defendant's use. A loss of money incurred by the agent without fault, ought to be compensated by the principal. [*714 The motion for a new trial was argued at December Term last. Todd and Rawle for the defendant, argued, that there should be a new trial, because, 1. The defendant was in no manner bound to answer for the loss incurred by the plaintiff. 2. There was no count upon which, if a recovery was just, the plaintiff could recover what the jury had given him. 3. The verdict was excessive. 1. The agency of the plaintiff for the defendant ceased in the year 1805. He remained in St. Domingo after that time, for his own business; voluntarily exposing himself to the tyranny and outrages of the black government, and finding an indemnity for this exposure in his own emoluments. The loss which accrued. in 1808, was therefore not incurred in the course of the agency, but was the effect of an outrage committed upon his property intentionally detained within the reach of the wrongdoer, to which the defendant was in no respect accessory. Take it first upon the ground of a promise actually made by the plaintiff when he received our goods, to pay Richardson $3000 on account of the debt due by Suckley & Co. It was a promise never communicated to or sanctioned by the defendant, and which most obviously transcended the agent's powers; for the amount to be paid, was greater than the value of the goods, and not a shadow of authority was given to make any contract with Richardson on behalf of the Charleston house.(1) But this promise was a fiction. The (1) Nixon v. Hyserott, 5 Johnson, 58. transaction with Suckley and Richardson closed with the production of the power of attorney. The suit in 1808 was instituted under the patronage of Christophe, not as an appeal from or review of the prior suit, for in none of the proceedings in 1808 is the decree or judgment of 1804 either reversed or questioned, but as a new action, depending for its success upon despotic authority, regardless alike of law and morality. Take the case then upon the ground not of promise, but of an outrage committed under the coercion of despotism, it is a qualified robbery of the plaintiff's own property, for which he can have no recourse to us, without destroying commercial security, and putting every merchant in this country who has ever employed as his agent a resident in St. Domingo, at the mercy of the despots who rule that island. The consequences of such a doctrine may be terrible. An agency has closed or expired. The agent is no longer in the confidence or employ of his former principal. His former principal is dead, and his property is distributed. A*suit is commenced *715] against the agent in Algiers, in Turkey, or at the Cape, and under the threat, or the asserted threat of death, he is made falsely to acknowledge a promise, upon a matter said to be connected with his former agency, and to confess a judgment to an extent beyond all that his principal was worth. Is it possible to say that such an agent can recover his loss from the principal, without destroying hereafter that relation among men? It is not our property that has been taken; it is not in the course of an agency for us, that his own property has been taken; it is the case of an extorted promise under at most a mere color of continuing agency, the whole, from the foundation, a tissue of falsehood and outrage, and the judicial proceedings the mere machinery of robbery. All writers upon the subject of mandatary contracts, agree that in such a case there is no recourse to the principal. The mandant is obliged to replace to the mandatary, all reasonable expenses disbursed bona fide, and the damage sustained by him in the execution of the mandate. 2 Erskine's Institutes, bk. III., § 38, p. 334. The agent ought to be repaid whatever charges he has been at in the execution of the commission; and the same holds good of any loss that happens by reason of the trust, but not of such a loss as is occasioned obliquely by it, as if he had been plundered or shipwrecked.(1) When an agent undertakes a hazardous business, as every business in St. Domingo is to an American (1) Puffendorf, lib. 5, cap. 4, § 4, p. 482. |