Laidlaw v. Organ

¶1(local law. y

¶2Error to the district court for the Louisiana district.

¶3The defendant in error filed his petition, or libel, in the court below, stating, that on the 18th day of February, 1815, he purchased of the plaintiffs in error one hundred and eleven hogsheads of tobacco, as appeared by the copy of a bill of parcels annexed, and that the same, were delivered to him by the said Laidlaw & Co., and that he was in the lawful and quiet possession of the said tobacco, when, on the 20th day of the said month, the said Laidlaw .& Co., by force, and of their uwn.wróng, tbok possession of the same, and unlawfully withheld the same from the petitioner, notwithstanding he was at all times, and still was, ready to do and perform all things on his part stipulated to be done and performed in relation to said purchase, and had actually tendered to the said Laidlaw & Co. bills of exchange for the amount of the purchase money, agreeably to the said contract; to his damage, &c.' Wherefore the petition prayed that the said Laidlaw & Co. might be cited to-appear and answer to his plaint, and that judgment' might be renderad against them for his damages, &c. And inasmuch as the petitioner did verily believe that the said one hundred and eleven hogsheads of tobacco Would be removed,, concealed, or disposed of by the *179said Laidlaw & Co., he prayed that a writ of sequestration might issue, and that the same might, be se-. qüestered in the hands of the marshal, to abide the judgment of the court, and that the said one hundred and eleven hogsheads of tobacco might be finally adjudged to the petitioner, together with his damages, &c., and costs of suit, and that- the petitioner might have such other and farther relief as to the court should seem meet, &c.

¶4The bill of parcels referred to in the petition was in the following words and figures, to wit:

¶5“ Mr. Organ Bo’t of Peter Laidlaw é¿ Co. Ill Hhds. Tobacco, weighing 120,715 pounds n’t. fr. $7,544.69.

¶6“ New-Orleans, 18fh February, 1815.”

¶7On the 21st of February, 1815, a citation to the said Laidlaw & Co. was issued, and a writ of sequestration, by order of the court, to the marshal, commanding him to sequester 111 hogsheads of tobacco in their possession, and the same so sequestered to take into his (the marshal’s) possession, and safely keep, until the fárther order of the court; which was duly executed by the marshal. And on the 2d of March, 1815, counsel having been heard in the case, it was ordered, that the petitioner enter into a bond or stipulation, with sufficient sureties in the sum of 1,000 dollars, to the said Laidlaw & Co., to indepinify them for the damages which they might sustain in consequence of prosecuting the writ of sequestration granted in the case.a

¶8*180On the 22d of March, 1815, the plaintiffs in error filed their, answer, stating that they had no property iii the said tobacco claimed by the said petitioner- or ownership whatever in the same, nor had they at any time previous to the bringing of said, suit; but disclaimed all right, title, interest, and claim, to the said tobacco, the subject of the suit. And on the same day, Messrs. Boorman & Johnston filed their bill of interpleader or intervention, stating that the petitioner having brought his suit, and- filed his petition, claiming of the said'Laidlaw & Co.- Ill hogsheads of tobacco, for which he had obtained a writ of sequestration, when, in truth, the said tobacco belonged to the said Boorman & Johnston, *181-and was not the property of the said Laidlaw &Co., and praying that .they, the said Boorman & Johnston, might be admitted to defend their right, title, and © ° claim, to the said tobacco, against the claim and pretensions of the petitioner, the justice of whose claim, under the sale as stated in his petition, was wholly denied, and that the said tobacco might be restored to them,' &c.

¶9On the 20th of April, 1815, the cause was tried by a jury, who returned the following verdict, to wit: “ The jury find for the plaintiff, for the tobacco named in the petition, without damages, payable as per contract.” Whereupon the court rendered judgment “ that the plaintiff recover' of the said defendants the said 111 hogsheads of tobacco, mentioned in the plaintiff’s petition, and sequestered in this suit, with his eosts of suit-to be taxed; and ordered, that the, marshal deliver the said tobacco to the said plaintiff, and that he have execution for his costs aforesaid, upon the said plaintiff’s depositing in this court his bills of exchange for .the amount of the purchase money endorsed, &c., for the use of the defendants, agreeably to the verdict of the jury.”

¶10On the 29th of April, 1815, the plaintiffs in error filed the following bill of exceptions, to wit: “ Be it remembered, that on the 20th day of April, in the year of our Lord, 1815, the above cause came on for trial before a jury duly sworn and empannelled, the said Peter Laidlaw' & Co. having filed a disclaimer, and Boorman and Johnston of the city of New-York, having filed their, claim. And now' the said Hector *182M. Organ having closed his testimony, the said claimants, by their counsel, offered Francis Girault, one of the above firm of Peter Laidlaw & Co., as their witness ; whereupon the counsel for the plaintiff objected to his being sworn, on the ground of his incompetency. The claimants proved that Peter Laidlaw & Co., before named, were, at the date of the transaction which gave rise to the above suit, commission merchants, and were then known in the city of NewOrleahs as sjich, ánd that it is invariably the course of trade in said city for commission merchants to make purchases and sales in their own names for the use of their employers; upon which the claimants again urged thé propriety of suffering the said Francis Girault to be sworn, it.appearing in. evidence that the contract was made by Organ, the pláintiff, with said Girault, one of the said firm of Peter I ai'dlaw & Co. in their own name, and there béing evidence that factors and commission merchants do business on their own account as well as for others, and there being no evidence that the plaintiff, at the time of the contract, had any knowledge of the existence of any other interest in the said tobacco, except that of the defendants, Peter Laidlaw & Co; The, court sustained the objection, jmd rejected the said witness. To which decision of the court the counsel for the claimants aforesaid begged leave tó except, andrprayed that ¡this bill of exceptions might be signed and allowed. And it Appearing in evidence in the sajd cause, that on the night of thé 18th of February, 1815, Messrs. Livingston, 'White, and Shepherd brought from the *183British fleet the news that á treaty of peace had been signed at Ghent by the American and British commissioners, contained in a letter from Lord Bathurst to the Lord Mayor of London, published in the British newspapers, and that Mr. White caused the same to be made public in a handbill on Sunday morning, 8 o’clock, the 19th of February, 1815, and that the brother of Mr. Shepherd, one of these gentlemen, and who was-interested in one-third of the profits of the purchase set forth in said plaintiff’s petition, had, on Sunday morning, the 19th, of February, 1815, communicated said news to the plaintiff; that the said plaintiff, on receiving said news, called on Francis Girault, (with whom he had been bargaining for flL tobacco -mentioned in the petition, the evening previous,) said Francis Girault being one of the said house of trade of Peter Laidfaw &Co., soon after sunrise on the morning of Sunday, the 19th of February, 18J5, before'he had heard said news. Said Girault asked if there was any news which was calculated to enhance the price or valúe of the article about tobe purchased; and that the said purchase was then and there made, and the bill of parcels annexed to the plaintiff’s petition delivered to the plaintiff between 8 and 9 o’clock in the morning of that day; and that in consequence of said news the value of said article had risen from 30 to 50 per cent. There- being no evidence that the plaintiff had asserted of suggested any thing to the said Girault, calculated tb impose upon him with respect to said news, and to induce him to think ór believe that it did not exist.; and it appearing that *184the said Girault, when applied to, on the next day, Monday, the 20th of February, 1815, on behalf of the plaintiff, for an invoice of said tobacco, did not then object to the said sale, but promised to deliver the invoice to the said plaintiff in the course of the forenoon of that day"; the court charged the jury to find for the plaintiff. Wherefore, that justice, by due course of law, may be done in this case, the counsel of said defendants, for them, and on their behalf, prays the. court that this bill of exceptions be filed, allowed, and certified as the law directs.

¶11(Signed,) Dominick A. Hall,

¶12District Judge.

¶13New-Orleans, this 3d day of May, 1815.”

¶14On the 29th of April, 1845, a writ of error was allowed to this court, and on the 3d of May, 1815, the defendant in error deposited in the court below, for the use of the plaintiffs in error, the bills of exchange mentioned in the pleadings, according to the verdict of the jury and the judgment of the court thereon, which bills were thereupon taken out of court by the plaintiffs in error.

¶15Mr. C. J. Ingersoll, for the plaintiffs in error.

¶161. The first question is, whether the salé, under the circumstances of the case, was a valid sale j whether fraud, which vitiates every contract, must be proved by the communication of positive misinformation, or by withholding information when asked. Suppression of material circumstances within the knowledge of the vendee, and not accessible. *185to the véndor, is equivalent to fráudj.and vitiates the contract.b Pothier, in discussing this subject, adopts the distinction of the forum, of conscience, and the forum of láw; but he admits that Jides est servanda.cThe parties treated on an -unequal footing, as the one *186party had received intelligent? ofthe peace of Ghent, ai the time of the contract, and the other had not. *187This new; was unexpected, even at Washington, much more at New-Orleans, the recent scene of the *188moat sanguinary operations of the war. In answer to the question, whether there was any news calcu* *189lated to enhance the price of the article, the vendee was silent. This reserve, when such a question was *190asked, was equivalent to a false answer, and. as much calculated to deceive as the communication of the most fabulous ihtelligence. Though the plaintiffs in error, after they heard the news of peace, still went on, in ignorance of their legal rights, to complete the contract, equity will, protect them. *1912. Mr. Girault was improperly rejected as a witness, because' he and, his partner; had. disclaimed, and Messrs. Doorman & Johnston, the real owners of the tobacco, had intervened and. taken the place of the original defendants. Girault was not obliged to disclose his character of agent, and,, as such, he was an admissible witness.d The tendency of the modern decisions to let objections go. to. the credibility, and not to the competency of witnesses, ought to be encouraged as an-improvement in the jurisprudence on this subject. Besides, the proceedings aré. essentially in rem, according to the Coiir.se of the civil law, and that consideration is conclusive. as to the admissibility of the witness. 3, The court below had no right to charge the jury absolutely'to find for the plaintiff. ‘ It was a mixéd question of tact and law, whitíh ought tp have heen left to the jury to*decide. 4. There is error in the . judgment of the court, in decreeing a deposit of the bills oí'exchange by the vendee for the tobacco, no such agreement being proved.

¶17Mr. Key contra,

¶181. Though there be no testimony in.the record to show a contract for payment in bills of exchange, still the court may infer that such was the contract from the petition of the plaintiff below, supported as it is by his oath, and uncontradicted, as to this fact, by the defendant’s answer. *192The decrée was for a specific performance, and the vendors took the bills, out of court. 2. The judge’s charge was right, there being no evidence of fraud. The vendee’s silence was . not legal evidence of fraud, and, therefore, there was no conflict of testimony oh this point: it was exclusively a question of law; the law was with the plaintiff; and, consequently, the court did right to instruct the jury to find for the plaintiff. 3. Mr. Girault was an inadmissible witness. He and his partners were general merchants as well as factors. They sold in their own names, and might call the article their own or the property, of their principals, as it suited them; But they were parties to the suit, and the intervention of their principals did not abate the suit, as to them.e*193On every ground, therefore, Mr. Girault was an in* admissible witness, 4. The only real question in the cause is, whether the sale was invalid because the vendee did not communicate information which he received precisely as the vendor might have got it had he been equally diligent or equally fortunate ? And, surely, on this question there can be no doubt. Even if the vendor had been entitled to the disclosure, he waived it by not insisting on an answer to his question; and the silence of the vendee might as well have been interpreted into an affirmative as a> negative answer. But, on principle, he was not bound’to disclose. Even'admitting that, his conduct was unlawful, in fora conscientice, does that prove that it was so in the civil forum ? Human laws áre imperfect in this respect, and the sphere of morality is more extensive than the limits of civil jurisdiction. The maxim of caveat emptor could never have crept into thelaw?if the province of ethics had been co-extensive with it. There was, in the present case,.no circumvention or manoeuvre practiséd by the vendee, unless rising earlier in the morning, and obtaining by superior diligence and alertness that intelligence by which the price of' commodities was regulated, be such. It is a romantic equality that is contended for on the-other side. Parties never can be p.ieeisely equal in knowledge, either of facts or of the *194inferences from such facts, and both must concur in order to satisfy the rule contended for. The absence of all authority in England and the United States, both great commercial countries, speaks volumes against the reasonableness and. practicability of such a rute. .

¶19Mr. C. J. Ingersoll, in reply.

¶20.Though the record may not show that any thing tending to mislead by positive assertion was said by the vendee^ in answer to the question proposed by Mr. Girault, yet it. is a case of manoeuvre; of mental reservation; of circumvention. The information was .^monopoliZed by the messengers from the British fleet, and not imparted to the public at large until it was too late for thé véndor^o.save.himself. The.rulé of. law *and of ethics is the. same.' >If is not a romantic, but a practical and legal rulé of equality and good; faith, that is. proposed to be applied. The, answer. of Boorman & Johnston denies the whole .of the petition, and consequently denies that payment. Was to be in; bills Oí exchange; and their taking, the hills out of. courts ought not to prejudice them, There is nothing in the record to show that the vendors were general merchants, and, they disclosed their principals when, they Came to plead. The' judge undertook to decide froth the testimony, that there was no fraud ;■ in so doing he.invaded the pro-. vince of the jury; he should have left it to the jury, expressing his opinion meyély,