Osborne, Administrator, vs. Benson et ux.

debts for an indefinite time; a certain, for an uncertain credit; a protection of Dean from suit for nine and twelve months; and that the mortgage should still stand security for the debt. I will leave the facts to the jury, if the counsel wishes it; but supposing the facts to be, as I have assumed them to be, I am of opinion, that there was no extinguishment of the mortgage in point of law.

The counsel for the tenants then consented, that the latter should be defaulted, which was done accordingly.

JOHN A. CUNNINGHAM & WILLIAM J. LORING

vs.

JAMES C. BELL AND OTHERS.

Where a voyage was undertaken to Havana, and thence to Leghorn and back, and the owners ordered the consignees at Leghorn, to apply their funds, estimated at 4600 pezzos, to the purchase, first of 2200 pezzos value of tiles, and the residue to invest in paper; and the consignees accepting the orders, invested the whole funds in paper, because they fell short of the estimated sum, although a sum of 1750 pezzos might have been so invested; it was held, that the consignees were liable in damages for the breach of orders.

The damages, in such case, are not to be confined to the transactions at Leghorn; but are to be calculated upon the actual injury to the plaintiffs, in the events of the voyage, taking into consideration the markets at Havana, and all the other cir

cumstances.

The receipt of the proceeds of the paper after sale, by the master at Havana, is not, in point of law, per se, a ratification of the purchase, and investment in paper by the owners.

What circumstances amount to a ratification of a breach of orders.

The omission to answer a letter acknowledging the breach of orders, or the omission to state to the party in a letter of complaint, that he will be held responsible, is not, per se, a ratification; but the question is open to the jury, as a matter of fact, whether such ratification ought, under all the circumstances, to be presumed. Where a bill of exceptions is taken at the trial, a motion for a new trial will not be entertained, unless the bill of exceptions is waived.

ASSUMPSIT brought by the plaintiffs, who are merchants in Boston, Massachusetts, against the defendants, who are merchants in

Cunningham et al. vs. Bell et al.

Leghorn, in Tuscany, for breach of orders as factors and commission merchants. The declaration contained various counts. Plea, the general issue.

The material facts, as they appeared at the trial, upon the points of law in controversy, are summed up in the charge of the Court; and it is thought unnecessary to report them, or give them more in detail.

The cause was argued by Hubbard and Webster for the plaintiffs, and by William Sullivan for the defendants.

STORY J., in summing up to the jury stated as follows: The present action is brought to recover damages for a supposed breach of orders, in a commercial transaction undertaken by the defendants at the request of the plaintiffs. The plaintiffs haying planned a voyage from Boston to Havana, and thence to Leghorn and back to Havana, for the brig Halcyon, commanded by Captain Skinner, on the 15th of September, 1824, wrote a letter addressed to the defendants at Leghorn of the following purport. "Boston, September 15, 1824. Duplicate. Messrs. Bell, De Yang & Co. Gent". This will be handed to you by Capt. J. Skinner jr., master of the brig Halcyon, belonging to us. We have contracted with Messrs. Atkinson & Robbins of this place, to furnish 600 boxes from Havana to Leghorn, on freight of £4. 10s. and 5 per cent. primage, payable in a bill on London, or in Leghorn currency, at the option of the master, and 600 boxes on half profits for freight, 1000 pezzos to be paid in Leghorn, on account of said profits. As the goods are to be consigned to you, we mention the terms of the contract, to avoid misunderstanding. The whole amount of freight receivable at Leghorn will be about pezzos 4600. Please invest 2200 pezzos in marble tiles, of 12, 14, and 16 ounces; the whiter they are the better. We believe, but are not certain, that the oz. corresponds to the English inch. We annex a copy of our invoice, received by Loring, Cunningham & Co. in 1818-19. The balance,

Cunningham et al. vs. Bell et al.

after paying disbursements, please invest in wrapping paper, to cost from 35 to 50 pezzos per 100 reams. Captain Skinner is to return to Havana from Leghorn. We wish you to obtain for him some freight, if possible, (excepting tiles and wrapping paper,) with liberty to touch at Marseilles, should letters we have requested Messrs. T. H. Rogers & Co. to lodge with you, induce him to stop there on his return. With much respect, &c." After annexing the invoice, there was a postscript as follows. "September 20, 1824. The above is duplicate of our respects per Halcyon. Please forward the enclosed as soon as received. We send the above, that if time is necessary to furnish the articles therein ordered, you may receive it before the arrival of the Halcyon.” The original letter, without this postscript, was sent by the Halcyon, with the following postscript on it. "P. S. We have further engaged whatever may be necessary to fill the brig, on half profits, on account of which 700 pezzos are to be paid in Leghorn. After purchasing the tiles and paying disbursements, you will invest the balance in paper as abovementioned. In previous orders, the reams have been deficient in the proper number of sheets. We will thank you to pay particular attention to this, as well as having all the sheets entire."

The foregoing duplicate, with the postscript of the 20th of September was received by the defendants on the 30th of November following, who on the 9th of December following, replied as follows:-"The order you are pleased to give us for paper and marble tiles, to be paid for out of the freight of the Halcyon's cargo from Havana, to our consignment, has our particular attention. You have done very right to send us this order, as the wrapping paper cannot be got in readiness before the end of January; and therefore, had it been delayed longer, could not have been in time for your brig Halcyon. We have contracted for 5000 reams, at as near your limits as possible, the article being just now in great demand. The tile shall be collected also; and for your future regulation we will note at foot a scale of compar

Cunningham et al. vs. Bell et al.

ative measurement 'twixt ounces and English inches." It is material to remark, that nothing is here said as to the price, at which the tiles were contracted for, so as to put the plaintiffs in possession of the exact sum.

The Halcyon sailed from Boston for the Havana on the 16th of October, and having performed that part of the voyage, and taken in a cargo of 1330 boxes of sugar for Leghorn, arrived at the latter port on the 20th of January 1825, and there the cargo was delivered to, and sold by the defendants, who received the proceeds of the same. From the state of the market the funds realized for the plaintiffs fell short of the expected amount of 4600 pezzos, the net amount of freight, including the advance of the 1000 pezzos provided for by the original contract, being, as appears by the account current, only about 3450 pezzos. The disbursements of the brig amounted to 647 pezzos. No tiles were purchased and no investment at all was made of the 700 pezzos provided for in the postscript; but the whole of the other proceeds, deducting the disbursements, viz. 2801 pezzos, were invested in 437 packages of wrapping paper and sent in the Halcyon to the Havana. After the arrival at the Havana, the paper was sold and the proceeds received by the plaintiffs. The tiles would have been a far more profitable investment. These are the facts, upon which the plaintiffs have founded their action for damages for a breach of orders, in not investing 2200 pezzos in tiles, as required by the original letters of the 15th and 20th of September.

The first question arising in the case is, as to the nature and extent of the contract between the parties; for there can be no doubt, that the orders of the plaintiffs, and the acceptance thereof by the defendants, constituted a valid contract upon commission, binding between the parties. It appears to me, that there was a clear undertaking on the part of the defendants to apply the proceeds of the freight, and advances coming into their hands from the cargo of the Halcyon, in the manner pointed out in the

Cunningham et al. vs. Bell et al.

orders. I mean, that in the first place, the defendants were to appropriate 2200 pezzos to the purchase of marble tile, and the balance, after deducting the disbursements of the brig, and the balance only, was to be applied to the purchase of wrapping paper. I agree, that the defendants were not bound to execute the orders, unless funds came to their hands; for they did not stipulate to make any advances out of their own monies. But on the other hand, there was no stipulation, that 4600 pezzos should at all events come into their hands, constituting a condition precedent, so that if a less sum should come, the defendants were at liberty totally to disregard the orders of the plaintiffs. The reasonable interpretation of the orders is, that the funds received on account of the plaintiffs should, as far as they would go, be applied to the purchase, first, of marble tiles, and afterwards, if any balance remained, pro tanto, of wrapping paper. If, therefore, the whole funds should be absorbed by a purchase of marble tiles, to the extent of 2200 pezzos, there was to be no investment in paper.

The estimate of the probable amount of the freight and advances at 4600 pezzos was undoubtedly designed to direct the discretion of the defendants in the purchase of paper. They had a right to act with reference to that, as the probable funds, which would be realized. If it were necessary in order to secure the paper ready for the return voyage at the proper period, that a preliminary contract should be made with dealers in that article, the defendants were at liberty so to do, and were not obliged to wait the ship's arrival, before they took a step. They were, in this respect, authorized to do whatever the custom of trade, or sound discretion might require, to accomplish the objects of the plaintiffs. And their acts, so done, were obligatory upon the plaintiffs, whether funds afterwards came into their hands or not. It is clear, from the subsequent correspondence, that the parties so understood the matter.