Schimmelpennich v. Bayard. 1 P. desire we have to be often in the opportunity of rendering you the like, or any services in our power. Referring for commercial information to our general letter of this date, we are, with sincere regard, Gentlemen, your most obedient servants, N. and J. and R. VAN STAPHORST. (Indorsed,) Confidential, Amsterdam, 21st of January, 1818. N. and J. and R. Van Staphorst. Received, March 29th. Answered, 24th do. [* 279 ] * This letter was answered by Le Roy, Bayard, and Co. in the following terms: PRIVATE. New York, 24th of March, 1818. Messrs. N. and J. and R. VAN STAPHORST, Amsterdam. Gentlemen: We have the honor of replying to your esteemed favor of 21st of January, acquainting us with the arrangement you have made with our mutual friend, Mr. Delprat, who has undertaken the agency of procuring you consignments from this country. In the furtherance of the object, we shall be very happy to render our services useful, and beg to offer our best wishes for the success of Mr. Delprat's operations in your behalf. Due note is taken of the credit you are pleased to open to that gentleman with us, to the amount of $40,000, subject to renewal, as fully expressed in your letter. We doubt not, from the knowledge we possess of Mr. Delprat's character, that he will fully justify the confidence you repose in him; and though he may, under existing circumstances, find it difficult to enlarge to the extent that could be mutually wished, we are persuaded that no exertion will be wanted on Mr. Delprat's part, to reap the utmost benefit from the mission intrusted to him. Believe us, with honor and esteem, gentlemen, Your obedient servants, LE ROY, BAYARD, and Co. It is proper to observe that several merchants of Holland, whose agents the plaintiffs were, had become large holders of government stock, and of shares in the Bank of the United States. Le Roy, Bayard, and Co. had been employed to draw the interest and dividends, and to remit them to Europe. The credit of $40,000, therefore, which was raised for Delprat, with Le Roy, Bayard, and Co., was merely the application of so much of their funds, in the United States, to the business of his agency, in aid of the bills he was authorized to draw on them. The continuance or discontinuance of this credit might depend on the eligibility of continuing this mode Schimmelpennich v. Bayard. 1 p. of remittance, as well as on the withdrawal of their confidence in their agent. Several letters passed between the plaintiffs and defendants, respecting their transactions in consequence of this credit, which manifest, unequivocally, the desire of the plaintiffs that its amount should not be exceeded, but which betray no want of confidence in Delprat. In a letter of the 24th June, 1819, they renew the credit of $40,000, and add, "at the same time, we confirm our former orders not to exceed said amount for our account. In case you have funds in hand, for any of our institutions, and you think proper to remit us for the same Mr. Delprat's bills on us, the nature of which you are well acquainted with; you allow him, then, the same credit *which you do to all persons from [* 280] whom you take bills, in the persuasion of their solidity and of the reality of the transaction on which the bills are issued. In answer to this letter, the defendants say, on the 24th of September, 1819: "You also accord us the permission to remit this gentleman's (Delprat's) drafts for any moneys we may have on hand belonging to your various institutions. The confidence which we mutually have in this gentleman's character, must, with us, act in lieu of vouchers, to exhibit the reality of transactions which may give origin to such drafts, the whole of this gentleman's operations having been hitherto beyond our immediate knowledge." This correspondence continued until the 12th of May, 1820, when N. and J. and R. Van Staphorst addressed a letter to Messrs. Le Roy, Bayard, and Co., of which the following is an extract: "There being frequent opportunities of drawing here now, on New York, we will probably have, for some time to come, occasion to dispose of the dividends which 'you will receive for our account, in October next,' and so on; and we have therefore directed Mr. Delprat not to make use of his credit of $40,000, lately opened in his favor. We thus also request you, by the present, to consider the same as annulled until we may again renew the same." The agency of Delprat continued after this revocation of his credit with Le Roy, Bayard, and Co. He continued to solicit consignments for their house in Amsterdam, and to draw bills on them for advances, without any other alteration in his powers than is contained in a letter of the 6th February, 1821, which contains the following clause: "The advances, therefore, to be made by you on our behalf, on shipments to our consignments, either from funds belonging to us in your hands, or by drawing and indorsing the shipper's draft, must not exceed, henceforth, one half of the 'true invoice."" compensation for this reduction of the advance to be made in the United States, J. and N. and R. Van Staphorst engaged, on the ar As a Schimmelpennich v. Bayard. 1 P. rival of the shipments, to remit to the consignors the estimated value of the cargoes in bills on their house in the United States. Delprat acknowledged the receipt of this letter on the 17th of April, 1821, and promised to conform to its directions. The correspondence between the plaintiffs and defendants, respecting Mr. Delprat's agency, appears to have ceased on the 12th of May, 1820, when his credit with the house of the latter was annulled. At least, no subsequent letter appears in the record until the 9th of July, 1822, when the plaintiffs announced to the defendants the sudden termination of their connection with Mr. Delprat; whose conduct, they said, had been so imprudent as to [* 281] oblige them, at the same time, to protest several of his drafts. Their knowledge, they say, of the former intercourse between Le Roy, Bayard, and Co. and Mr. Delprat, and of the great regard felt for him by those gentlemen, induce them to state the chief reasons which compelled them to this measure. These are, his irregularities in keeping his accounts, and omission to furnish an account since the 31st of December, 1820, although the balance then due from him was fully $7,837.54, being "for the proceeds of gin consigned by us to him; for proceeds of drafts, issued by him on us, for our account, in order to employ the proceeds to make prudent advances with," &c. They then proceed to state that Mr. Delprat owed, at that date, upwards of 82,000 florins, against which he might be entitled to a credit of $6,000. The account, they say, has accrued to this height, in a great measure, "in consequence of shipments made to him for his account, in full confidence of his making us, for the amount, remittances; which we till now have not received, though the goods. were with him for many months." The letter complains of the large advances made by Mr. Delprat, on consignments, notwithstanding their repeated remonstrances; and dwells on the high opinion they had entertained of him; "his integrity," they say, they "even now will not question." Thus, the letter proceeds, "were matters situated, when last Friday, contrary to anything we could expect or anticipate, we found ourselves drawn upon by Mr. Delprat, for £200, £300, and £500, issued, as he informs us, for the amount of purchases which he is making of articles not yet shipped;" and, on the other hand, 2d, £500, florins 1250 and 1750, issued on us, as advances made to Mr. Krafft, already so much our debtor, on shipments which he made some long time ago, and which Mr. Delprat could clearly perceive that, taken at an average, did nothing diminish the balance due by him." The letter proceeds to state, in substance, that they could choose Schimmelpennich v. Bayard. 1 P. only between the alternatives of allowing the debt due from Mr. Delprat to be swelled to a still larger amount, and protesting his bills. They had chosen the latter, however it might pain their feelings. They express their regret to find that, among the drafts to be protested for non-acceptance, and perhaps afterwards for non-payment, are several indorsed by the defendants, for whose honor, however, they had intervened. This letter was received by the defendants on the 1st day of September, 1822. They immediately obtained from Mr. Delprat an order on the plaintiffs to hold at their disposal all the proceeds of the goods shipped in his name, by The Virgin and other vessels, and all balances due to him. This order was inclosed to the *plaintiffs, in a letter of the 7th September, 1822, in which [282] they say: "We can of course only consider this order as applying to the balance that may possibly accrue to him upon the settlement of your account; and if any should accrue, we will thank you to take such legal steps which you may deem necessary, as will place it with us, without fear of contention. His drafts, which you may have paid for our account, will probably furnish sufficient authority to enable you to do so." At the trial, John C. Delprat was examined as a witness. He deposes that the several bills of exchange on which this suit was instituted, were drawn in his capacity as agent, on account of and for the purpose of making advances on shipments consigned to the plaintiffs; and, except that in favor of J. P. Krafft, for £500, were accompanied by letters of advice. That during the whole period of his agency, he was in the habit of making shipments on his own account, and of drawing for advances on the said shipments precisely in the same manner as when they were made by others; that this was done with the full knowledge and approbation of the said N. and J. and R. Van Staphorst, who never found fault with him for doing so; but to encourage him to make such shipments, gave him credit for one half the commission upon the sales of the shipments so made upon his own account. On his cross-examination, the witness stated that the bill for £500 in favor of Krafft, was drawn for shipments, by The Edward, Jason, and May Flower. He cannot say when The Edward sailed. The Jason had arrived, and The May Flower had sailed before the bill was drawn. Krafft was at that time indebted to the plaintiffs. The bill was issued to Krafft, but was returned to witness, who sent it to the defendants. The bills of lading and the invoices were not sent with it. The three bills of the 27th of May, for £1,000, were drawn on account of shipments, in his own name, by The Virgin. She sailed about the 30th July Schimmelpennich v. Bayard. 1 P. They were not accompanied by invoices or bills of lading. The two bills of the 12th and 18th June, for £1,000 and for £300, were drawn on tobacco shipped by the Henry, belonging to the witness and to Mr. Krafft. The bill of lading and invoice did not accompany them. The three bills of the 31st of July were drawn on the shipments by the Virgin generally. They were not accompanied by bills of lading or invoices. The defendants received a commission for indorsing his bills on the plaintiffs. In making the advances on shipments on his own account, he drew on the plaintiffs, sent his bills to the defendants, to whom they were charged, and then drew on the defendants, as the money was required, either on his own shipments or the shipments of [*283] others; which bills were credited to the defendants. He understands that all his transactions with the defendants were carried by them into their general account with him. These transactions were not confined to his agency for the plaintiffs. He remains considerably indebted to them. He was concerned in shipments with Mr. Krafft, and did a great deal of business with him; but did not consider himself as a general partner. The connection between the plaintiffs and J. C. Delprat, was formed by the agreement of the 11th January, 1818. He was constituted their agent for purposes therein described, and received such powers as were deemed sufficient to enable him to perform the duties which devolved on him. That duty was to manage their mercantile interest in the United States, "consisting chiefly in the forming of new solid connections, and procuring of consignments." To enable him to perform this duty, he was allowed the faculty to value on them direct or payable in London, at no shorter date than sixty days' sight, for such moneys as he should " employ to make advances on the whole or part of cargoes of current articles;" namely, to the amount of twothirds of the invoice price, &c. It being understood that his letters of advice should be accompanied by the bills of lading and invoices of the goods on which the advances may have been made. John C. Delprat, then, had no general authority to personate the plaintiffs in all respects whatever; but was an agent appointed for particular purposes, with limited powers, calculated to subserve those purposes. To procure consignments, it was indispensable that he should advance money to the consignors, and this money was to be raised by bills on the plaintiffs. But he was authorized to draw only for a special purpose, and to a limited extent. Out of the limits assigned to him, he had no power. The plaintiffs not being, as a matter of course, the acceptors of every bill he might draw, must |