12 U.S. 50
8 Cranch 50
3 L.Ed. 484
LEIGH AND AL.
Feb. 12, 1814
Absent. WASHINGTON, J.
THIS case is so fully stated in the opinion of the Court that
it is deemed unnecessary to add more than that HARFER and PINKEY, for the Plaintiff in error, did not argue the case as there was no appearance for the Defendants in error, but simply stated that they contended that the separate instructions of each owner severed the joint interest, and cited 1, Esp. 117, and Watson on Partnership, 233, 234.
LIVINGSTON, J. delivered the opinion of the Court as follows:
This cause comes here on a writ of error to the Circuit Court of the United States, for the district of Maryland.
This action was brought by the Plaintiff, who was also Plaintiff below, to recover the proceeds of one hundred bags of cotton which had been shipped to the Defendants, and by them sold on commission.
At the trial it appeared that the Plaintiff, together with William Potts and Co. in 1807, made a joint shipment of two hundred bales of cotton to the address of the Defendants, who resided at Liverpool, to make sale thereof for their joint benefit. This cotton belongen one half to the Plaintiff, and the other half to Wm. Potts and Co. The shipment was accompanied by two letters to the Defendants, the one written by the Plaintiff bearing date 14th February, 1807, in which after advising them of the shipment, he adds, 'Mr. Potts has written you on the subject of his interest in this adventure, for myself I have to request that you will after covering me in cost and charges, make such disposition of my one half the shipment as your own judgment may think best for my interest.'
The other letter was written by William Potts and Co. and is dated 5th February, 1807, in which they also advised the Defendants of the shipment which they say is 'for account of Mr. Hall and ourselves each one half,' and after directing what is to be done, with their moiety, they observe that 'under present circumstances, Mr. Hall 'will decline drawing on his proportion, as he wishes you to avoid selling at the present prices as long as possible—we refer you to him for more particular directions.'
In another letter of the 13th April, 1807, the Plaintiff directed the Defendants that, after effecting sales of his half of the cotton, on the terms of his first letter, 'they should pass the nett proceeds of his proportion to the credit of Messrs. W. Potts & Co. and furnish him with sales and account current as soon as possible, to enable him to settle with those gentlemen here.'
After the receipt of these letters, the Defendant on the 5th June, 1807, sold one hundred bags of the cotton on account of William Potts, and Co. at 17d. sterling per pound, and immediately advised them thereof.
The Defendants afterwards, that is on the 31st December, 1807, had the remaining one hundred bags of cotton, valued at 14d. sterling per pound, at which price they took it to themselves, and carried the amount to the credit of William Potts, and Co. and on the 1st March following, sold them at a higher price. The Plaintiff thinking the Defendant, guilty of a breach of orders, brought this action to recover damage, and on the preceding evidence, the Circuit Court was of opinion that he could not separately maintain an action against them, on which a verdict and judgment passed against him.
Although the purchase of this cotton was on the joint account of the Plaintiff, and of William Potts and Co. yet as, in its shipment to the Defendants, their distinct interests were not only disclosed, but as separate and variant instructions were given as to the disposal of it, and as, under these directions, the Defendants acted throughout the whole of their agency in this business, it is not easy to perceive on what ground they now allege that they can be liahle only in a joint action in the names of the present Plaintiff, and of William Potts and Co. By their own conduct they have precluded themselves from every objection of this nature, for they have contracted, as to the one half of this properly, with the Plaintiff, and as to the other moiety, with William Potts and Co. and it will be seen by a recurrence to the testimony, not only that their engagements with these parties are distinct, but of different kinds. In selling the proportion of W. Potts and Co. they had a discretion, but over the other they had no right to sell for less than cost and charges. This Court therefore is of opinion that the action was well brought, and that the judgment of the Circuit Court was erroneous and must be reversed.