SPECIAL VERDICT, IN THE CASE OF LEWIS LE GUEN AND ISAAC GOUVERNEUR & PETER KEMBLE, IN THE SUPREME COURT OF THS STATE OF NEW-YORK 1797.
NEW-YORK: PRINTED AT THE ARGUS OFFICE.
SPECIAL VERDICT, &c.
Pleas before the People of the State of New-York, in their Supreme Court of Judicature at the City of Albany, of the Term of July, in the Year of our Lord 1796.
Witness, ROBERT YATES, Esq Chief Justice.
LOUIS LE GUEN puts in his place, Alexander Hamilton his attorney, against Isaac Gouverneur and Peter Kemble in a plea of trespass on the case.
The said Isaac Gouverneur and Peter Kemble put in their place, Martin S. Wilkins their attorney at the suit of the said Louis Le Guen in the plea aforesaid.
Be it remembered, that on the last Tuesday of July, in this same term, before the people of the state of New-York, in their supreme court of judicature at the city of Albany, came Lewis Le Guen by Alexander Hamilton his attorney, and brought into the said court of the people then there, his certain bill against Isaac Gouverneur and Peter Kemble, being in custody, &c. of a plea of trespass on the case, and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words, to wit.
Louis Le Guen complains of Isaac Gouverneur and Peter Kemble in custody, &c. for that whereas the said Isaac Gouverneur and Peter Kemble, on the thirteenth day of April, in the year of our Lord one thousand seven hundred and ninety-five, were and long before had been, and ever since have been, and now are merchants and factors (to wit) at the city of New-York at the first ward of the said city and in the county of New-York, and during all that time, have carried on there the business of factors under the firm of Gouverneur and Kemble, and as such factors have been used to receive from divers persons, goods, wares and merchandizes, to be sold and disposed of upon the account of such persons respectively, and the same goods, wares and merchandize, to sell and dispose of upon such account, in consideration of certain rates of commission or factorage to them allowed upon the amounts of the sales by them made of such goods, wares and merchandize, according to the usage and custom of the business of factors aforesaid in the city aforesaid. And whereas the said Louis on the said thirteenth day of April in the year aforesaid, at the city, ward, and in the county aforesaid, was possessed of two hundred and fifty-seven thousand, one hundred and twenty-nine pounds of cotton-wool, and twelve thousand nine hundred and ninety-five pounds of indigo, as of his own proper goods and chattels; and he the said Louis so being thereof possessed, it was then and there agreed by and between the said Louis, and the said Isaac Gouverneur and Kemble, that he the said Louis, should deliver the said cotton-wool and indigo to the said Isaac Gouverneur and Peter Kemble, to be by [...] and disposed of upon his account, and that they [...] Isaac Gouverneur and Peter Kemble, should sell and dispose of the same upon his said account, and should [...] and pay, or become bound as sureties, for the [...], duties and all other lawful and reasonable charges and expences [...] and concerning the said cotton-wool and [...] for so doing should be allowed a commission [...] upon the amount of the [Page 5] sales thereof, and such further commission as according to the course of their agency therein, and the usage of merchants and factors in the city aforesaid, in the like cases they might be entitled to have as a reward for their pains and trouble therein. And whereas the said Louis, in pursuance of that agreement afterwards, that is to say, the same day and year aforesaid, at the city, ward, and in the county aforesaid, delivered the said cotton-wool and indigo, to the said Isaac Gouverneur and Peter Kemble, to be by them sold and disposed of as aforesaid, and the said Isaac Gouverneur and Peter Kemble, then and there received the said cotton-wool and indigo, to sell and dispose of the same as aforesaid. And whereas the said Isaac Gouverneur and Peter Kemble, after the said delivery to them of the said cotton-wool and indigo (to wit) the same day and year aforesaid, at the city, ward, and in the county aforesaid, sold and disposed of the said cotton-wool, and indigo by the description of "upwards of six hundred bales of cotton in the gross weight" and "about twelve thousand weight of Isle of France indigo," to Abraham R Rivera, Isaac Gomez, jun. and Moses Lopez of the city aforesaid, merchants, for the account of the said Louis Le Guen, upon the terms and conditions following (to wit) that they the said Abraham R. Rivera, Isaac Gomez, jun. and Moses Lopez, should pay to them the said Isaac Gouverneur and Peter Kemble for the said cotton-wool by the description aforesaid, at and after the rate of three shillings current money of the state of New-York for each pound thereof, and for the said indigo by the description aforesaid, at and after the rate of sixteen shillings of like current money aforesaid for each pound thereof, and towards that payment should make and deliver to the said Isaac Gouverneur and Peter Kemble their joint notes in writing, commonly called promissary notes, thereby promising to pay to them the said Isaac Gouverneur and Peter Kemble, or their order, twelve months after date, the amount of the said cotton-wool and indigo, at the rates or prices aforesaid, with interest thereon for the term of ten months at and after the rate of six pounds upon every hundred [Page 6] pounds for a year, and should cause the said cotton-wool and indigo, to be, on or before the twenty-fifth day of May next ensuing, laden or board a certain ship called the White-Fox, then being in the port of the said city of New-York, to be carried in the said ship to Havre-de Grace in France, or Hamburgh in Germany, in parts beyond the seas, one or both of the said places to the intent to sell and dispose of the same there, and should also cause the said-cotton-wool and indigo to be fully covered by insurance, and the policy or policies of such insurance should deposit with the said Isaac Gouverneur and Peter Kemble by way of collateral security towards securing the payment of the amount of the said notes in case of the loss of the said cotton-wool and indigo in the voyage aforesaid, and in case of and after the landing of the said cotton-wool and indigo in some foreign port, should cause the certificates, documents and proofs required by the laws of the United States, to ascertain the said landing in order to the obtaining of the drawback of the duties thereupon allowed by the said laws to be forwarded and sent to the said Isaac Gouverneur and Peter Kemble, to the end that they the said Isaac Gouverneur and Peter Kemble might obtain the said drawback for their benefit, and also should cause to be applied the proceeds of the sales of the said cotton-wool and indigo in France, or elsewhere, as soon as the monies arising there from could be received and remitted to the said city of New-York towards the payment of the notes aforesaid, to abate the growing interest thereof from the time or times of and in proportion to such payment, but that nevertheless the said Isaac Gouverneur and Peter Kemble, should have right to elect to receive the whole or any part of the amount of the said [...] at Havre de Grace aforesaid, or any other port [...] where the said ship might discharge the said cotton-wool and indigo, to be paid by the said Abraham R. Rivera, Isaac Gomez, jun. and Moses Lopez, to them the said Isaac Gouverneur and Peter Kemble or their agent, out of the proceeds of the sales of the said cotton-wool and indigo, together with a premium thereupon at and after [Page 7] the rate of five pounds for every hundred pounds thereof for receiving the same in Europe, and to be paid in coin, that is to say in Spanish milled dollars, at and after the rate of one hundred cents lawful money of the United States for each dollar, or in French crowns at and after the rate of one hundred and ten cents of like money aforesaid for each crown, and that the said Isaac Gouverneur and Peter Kemble, when advised of such payment or payments, should make endorsements thereof upon the said notes, which said sale and disposition upon the terms and conditions aforesaid, are expressed in and appear by a certain agreement in writing, the date whereof is the aforesaid thirteenth day of April, in the year aforesaid, made by and between the said Abraham R. Rivera, Isaac Gomez, jun. and Moses Lopez of the one part, and the said Isaac Gouverneur and Peter Kemble of the other part, and now in the possession of the said Isaac Gouverneur and Peter Kemble, whereby also the said parties for the true performance thereof, bind themselves each unto the other in the penal sum of twenty thousand dollars; and the said Louis doth aver, that the said sale and disposition were made, and the said agreement therefor entered into by the said Isaac Gouverneur and Peter Kemble, by the immediate direction, and with the immediate privity and consent of the said Louis, and that all and singular, the matters and things in and by the said writing agreed to be performed to the said Isaac Gouverneur and Peter Kemble, and particularly that the right by them thereby reserved, to elect to receive the whole, or any part of the amount of the said notes, at Havre de Grace aforesaid, or any other port in Europe, where the said ship should discharge the said cotton-wool and indigo, together with the said premium of five per centum, were intended for the special benefit and advantage of the said Louis, subject only to the lien and right of the said Isaac Gouverneur and Peter Kemble, to have and receive the general balance of their account, with the said Louis, and to be secured for and concerning such further and other claims and demands, as they might and should be entitled to, and have by reason of their agency [Page 8] and undertakings, for and on behalf of the said Louis, as his factors, to wit, at the city, ward, and in the county aforesaid.
And the said Louis doth also aver, that afterwards and before the aforesaid twenty-fifth day of May, in the year aforesaid, that is to say, on the twenty-fourth day of May in the year aforesaid, at the city, ward, and in the county aforesaid, the said cotton-wool and indigo were by the said Abraham R. Rivera, Isaac Gomez, jun. and Moses Lopez, laden on board the ship aforesaid, then being in the port of the said city of New-York, and the said ship with the said cotton-wool and indigo on board, forthwith thereafter set sail from the said port of the said city of New-York, to proceed on her said voyage immediately to the port of Havre de Grace aforesaid; by reason whereof, they the said Isaac Gouverneur and Peter Kemble were in duty bound to pursue the direction and request of the said Louis as touching the exercise of the right, so as aforesaid reserved, to receive the whole or any part of the amount of the notes aforesaid at Havre de Grace aforesaid, or at any other port in Europe, where the said ship should discharge the said cotton-wool and indigo, together with the said premium thereupon; that is to say, within the limit and to the extent of the sum which would be due to the said Louis, upon the amount of the said notes, after reserving and deducting thereout so much as would be necessary and sufficient to satisfy the said Isaac Gouverneur and Peter Kemble for the general balance of their account aforesaid, & also to secure them for & concerning such further and other claims and demands, as they might and should be entitled to, and have by reason of their agency and undertakings, for & on behalf of the said Louis, as his factors, and were also in duty bound, upon the request and direction of the said Louis, to give to the said Louis, power and authority to receive from the said Abraham R. Rivera, Isaac Gomez, jun. and Moses Lopez, the residue of the amount of the said notes, after such deduction and reservation as aforesaid, together with the said premium thereupon, at Havre de Grace aforesaid, or at any [Page 9] other port in Europe, where the said ship should discharge the said cotton-wool and indigo, out of the said proceeds of the sales thereof. And in consideration thereof, they the said Isaac Gouverneur and Peter Kemble afterwards, to wit, the same twenty-fifth day of May, in the year aforesaid, at the city, ward, and in the county aforesaid, undertook, and then and there faithfully promised the said Louis, to exercise the right, so as aforesaid reserved, within the limit and to the extent aforesaid, pursuant to his request and direction, and to give to him, if by him requested and directed, the power and authority aforesaid; and the said Louis, in fact saith, that afterwards, to wit, the same twenty-fifth day of May, in the year aforesaid, and often afterwards, at the city, ward, and in the county aforesaid, he requested and directed the said Isaac Gouverneur and Peter Kemble to elect to receive the amount of the said notes, or at their option, so much thereof as would be due to the said Louis, after deducting and reserving thereout so much as would be necessary and sufficient to pay and satisfy the said Isaac Gouverneur and Peter Kemble, for the general balance of their account aforesaid, and also to secure them for and concerning such further and other claims and demands, as they might and should be entitled to, and have, by reason of their agency and undertakings, for and on behalf of the said Louis, as his factors, at Havre de Grace aforesaid, or at any other port in Europe, where the said ship should discharge the said cotton-wool and indigo, out of the said proceeds of the sales thereof; and after such deduction and reservation made, to give to the said Louis power and authority, to receive from the said Abraham R. Rivera, Isaac Gomez, jun. and Moses Lopez, the residue of the amount of the said notes, together with the said premium thereupon, at Havre de Grace aforesaid, or at any other port in Europe, where the said ship should discharge the said cotton-wool and indigo, out of the said proceeds of the sales thereof. And the said Louis, further, in fact saith, that after such deduction and reservation as aforesaid made, there would remain due to him the said Louis, as for the residue of the amount of the said notes, a large sum of money, to wit, [Page 10] the sum of seventy thousand pounds current lawful money, of the state of New-York, of which the said Isaac Gouverneur and Peter Kemble then and there had notice. Nevertheless, the said Isaac Gouverneur and Peter Kemble, not regarding their said promise and undertaking, according to their duty as the factors of the said Louis, so as aforesaid made, but contriving, and fraudulently, intending, craftily and subtilly to deceive and defraud the said Louis in this behalf, although often requested and directed thereunto as aforesaid, have not elected to receive the said amount of the said notes or any part thereof, at Havre de Grace aforesaid, or any other port in Europe, where the said ship should discharge the said cotton-wool and indigo, nor have they given to him, the said Louis, the power and authority so as aforesaid by him requested of them, as they ought to have done, but have wholly refused so to do. And also for that whereas the said Isaac Gouverneur and Peter Kemble afterwards, to wit, on the first day of June, in the year of our Lord one thousand seven hundred and ninety-five, at the city, ward, and in the county aforesaid, were indebted to the said Louis Le Guen, in other seventy thousand pounds, current lawful money of the state of New-York, for monies by them the said Isaac Gouverneur and Peter Kemble before that time had, and received to the use of him the said Louis, and the said Isaac Gouverneur and Peter Kemble being so indebted in that behalf, afterwards (to wit) on the day and year last abovesaid, at the city, ward, and in the county aforesaid, in consideration thereof undertook, and then and there faithfully promised the said Louis, to pay him the said seventy thousand pounds last mentioned, when they the said Isaac Gouverneur and Peter Kemble should afterwards be thereunto requested. Nevertheless, the said Isaac Gouverneur and Peter Kemble, not regarding this said promise and undertaking last aforesaid, but contriving and fraudulently intending craftily and subtilly to deceive and defraud the said Louis in this respect (although they have been often requested) have not paid the said seventy thousand pounds, or any part thereof to the said Louis, but have wholly refused and [Page 11] still do refuse to pay the same to him, to the said Louis his damage of seventy thousand pounds. And thereupon he brings suit, &c.
And the said Isaac and Peter, by Martin S. Wilkins, their attorney, come and defend the force and injury, when, &c. and say, that they did not undertake and promise in manner and form as the said Louis above complains, and of this they put themselves upon the country, and the said Louis doth the like, &c.
Therefore let a jury thereupon come before the people aforesaid, in their supreme court aforesaid, at the city of New-York, on the third Tuesday in October next, by whom, &c. and who neither, &c. to recognize, &c. because as well, &c. the same day is given to the parties aforesaid, &c.
NOTE. The cause was continued until last October term 1797, when the jury found the following Special Verdict.
And the jurors of that jury being called, in like manner come, who, to say the truth of the premises, being elected, tried, and sworn, do say upon their oath, that the said Louis Le Guen did not offer any evidence upon the second count contained in his said declaration, and therefore they say, that the said Isaac Gouverneur and Peter Kemble did not undertake and promise in manner and form as the said Louis Le Guen hath in and by the second count of his said declaration above alledged. And the jurors aforesaid, upon their oath aforesaid, do further say, that on the thirteenth day of April in the year of our Lord one thousand seven hundred and ninety-five, at the city and ward and in the county aforesaid, the above named Louis Le Guen, was the true owner and proprietor of sundry goods and merchandizes, to wit, of six hundred and eighty-seven bales of cotton, and twenty four casks and thirty-eight cases of indigo, which had before that [Page 12] time been there placed and delivered by him in the hands of the above named Isaac Gouverneur and Peter Kemble, copartners in trade, by the stile and firm of Gouverneur and Kemble, as his factors and agents, to sell and dispose of the same for his best advantage, and upon the commission usually there allowed to such factors and agents for the transaction of such business. And the jurors aforesaid, upon their oath aforesaid, do further say, That by the intervention and express consent and direction of the said Louis Le Guen, the said Isaac Gouverneur and Peter Kemble as his factors or agents, did on the said thirteenth day of April, at the city and ward, and in the county aforesaid, sell the said goods and merchandizes to Isaac Gomez, jun. and Moses Lopez who were then and there copartners in trade, under the firm and stile of Gomez and Lopez, and to one Abraham R. Rivera upon the terms and conditions contained in a certain contract or writing under the hands and seals of the said Isaac Gouverneur and Peter Kemble, Isaac Gomez, jun. Moses Lopez and Abraham R. Rivera, which was produced in evidence to the said jurors, was duly executed, and is in the words and figures following, that is to say. Whereas Gomez and Lopez, and Abraham R. Rivera, have agreed with Gouverneur and Kemble to take upon themselves the charter of the Hamburgh ship, White Fox, captain Haberstrok, on the same terms which were made with Mr. Dorhman, for her to proceed from the port of New-York to Havre de Grace and Hamburgh, for the consideration of two thousand pounds sterling payable in London, conditioned that there shall be fifty running days allowed to load and unload the said ship, and that every day over and above that time the ship may be detained, demurrage of five pounds sterling per day shall be allowed for such detention.
And whereas they, the said Gomez and Lopez and Abraham R. Rivera do further agree to purchase and load in the said vessel from the said Governeur and Kemble, upwards of six hundred bales of cotton in the gross weight [Page 13] at three shillings New-York currency per pound, and about twelve thousand weight of Isle of France indigo, at sixteen shillings said currency, the net proceeds payable in their joint notes of hand in this city twelve months after date, with ten months interest thereon at the rate of six per cent per annum, subject to the following conditions, viz. 1st. That the said Gomez and Lopez and Abraham R. Rivera will have the property all covered by insurance, and the policies for such insurance shall be lodged with Gouverneur and Kemble as a collatteral security to the payment of the notes. 2d. That whatever property may be first received from the sales of these goods in France or elsewhere, shall be applied to the payment of the notes as soon as the money can be received and remitted here to abate the growing interest, any time within the twelve months. 3d. The purchasers obligate themselves to return the necessary depositions and certificates of the goods being landed in a foreign country to enable the said Gouverneur and Kemble to recover the drawback of the duties for their benefit, which they the said Gomez and Lopez and Abraham R. Rivera relinquish any interest therein, and they engage the said cargo of cotton and indigo, shall be on board on or before the 25th of May proximo. 4th. That the said Gouverneur and Kemble may have it in their option to receive the whole or a part of the amount of the said notes at Havre de Grace, or at any port the ship may discharge at in Europe, which they the said Gomez and Lopez and Abraham R. Rivera engage to pay them the said Gouverneur and Kemble, or their agent, out of the proceeds of the sales of the cotton and indigo, together with a premium of five per cent thereon for receiving it in Europe, which is to be complied with in specie, either in Spanish dollars valued at one hundred cents, or in French crowns at one hundred and ten cents, and the said Gouverneur and Kemble on their parts will make endorsements on the notes, when advice shall be received of such payments being made. For the true performance of all which covenants hereunto subscribed to, the parties bind themselves each unto the other in the penal sum of [Page 14] twenty thousand dollars. Witness our hands in New York, this thirteenth day of April, 1795, and seals.
- GOUVERNEUR and KEMBLE BY J. GOUVERNEUR.
- ISAAC GOMEZ, Jun.
- MOSES LOPEZ.
- AB. R. RIVERA.
- A. CARROLL.
- NIC. OGDEN.
And the jurors aforesaid, upon their oath aforesaid, do further find, That the said six hundred & eighty seven bales of cotton, and twenty four casks and thirty eight cases of indigo, were thereupon, to wit, on the said thirteenth day of April one thousand seven hundred and ninety-five, delivered to the said Isaac Gomez, jun. Moses Lopez and Abraham R. Rivera, who afterwards and before the thirtieth day of May, in the same year loaded and shipped the same on board of the said ship White Fox, and gave to the said Isaac Gouverneur and Peter Kemble, their joint promissary notes for the sum of forty eight thousand nine hundred and sixty-six pounds and six shillings, being the amount for which the said cotton and indigo sold as aforesaid, payable as in the said contract or writing is specified. And the jurors aforesaid, upon their oath aforesaid, do further find, That the said cotton and indigo were entered for exportation at the custom-house, in the district of the city of New-York, that is to say, at the city and ward, and in the county aforesaid. And that thereupon the said Isaac Gouverneur and Peter Kemble received at the said custom-house, a debenture for the sum of four [Page 15] thousand eight hundred and thirty-four pounds and fifteen shillings, payable on the fifteenth day of August in the same year, and then and there as agents and factors of the said plaintiff, but in their own names, executed a bond to the United States of America in the penalty of twelve thousand and eighty-six dollars and eighty-seven cents, and in the usual form for the landing of the said cotton and indigo in some foreign county, and to produce the regular certificates of evidence thereof, within twelve months from the date thereof. And the jurors aforesaid, upon their oath aforesaid, do further say, That the said Isaac Gomez, jun. Moses Lopez and Abraham R. Rivera, did on the fourth day of May in the year aforesaid, sign, seal and deliver a certain deed or charter party of affreightment which was produced and shewn in evidence to the said jurors, and is in the words and figures following (that is to say) This charter party of affreightment, indented, made concluded and agreed upon this fourth day of May, in the year of our Lord, one thousand seven hundred and ninety-five, between Diederick Kohne, sailing master of the ship or vessel called the White Fox, of the burthen of one hundred and sixty two Hamburgh lasts, or thereabouts, acting for and in behalf of Berend Edward Haberstrok, master, and the owners of the said vessel of the one part, and Issac Gomez, jun. and Abraham R. Rivera of the city of New-York merchants of the other part, Witnesseth, That the said Diederick Kohne, acting as aforesaid for the considerations herein after mentioned, hath granted, and to fright-letten, and by these presents doth grant, and to freight-let unto the said Isaac Gomez, jun. and Abraham R. Rivera, the whole and full tonage, reach and run of the said ship White-Fox (the cabin and sufficient room for the crew, ship's stores, water and provisions excepted) for a voyage intended to be made from this port of New-York to Havre de Grace, and from thence to Hamburgh, upon the terms and conditions following And thereupon the said Diederick Kohne doth hereby for himself, the said Berend Edward Haberstrok, and the owners of the said ship White-Fox, his and their heirs, [Page 16] executors, administrators and assigns, covenant, promise and agree to and with the said Isaac Gomez, jun. and Abraham R. Rivera, their heirs, executors, administrators and assigns, that the said vessel is now and shall be maintained and kept by her owners during the term of this charter party, [...]ight, staunch and strong, well and sufficiently manned, victualied, tackled, apparalled, and furnished fit for merchants service, and shall be ready to receive on board whenever tendered along side by the said Isaac Gomez, jun. and Abraham R. Rivera, their factors or assigns a full and complete cargo, or lading of such goods, wares and merchandizes (contraband goods, naval and military stores excepted) as the said Isaac Gomez, jun. and Abraham R. Rivera, their factors and assigns, shall think proper, and being so laden and dispatched by the said Isaac Gomez, jun. and Abraham R. Rivera, their factors or assigns, the said vessel shall with the full good opportunity of fair wind and weather then next presenting, set sail from this port of New-York, and as wind and weather shall serve, proceed with the said cargo to the port of Havre de Grace and after arrival, deliver in good order and condition (the dangers of the seas, and the restraints of princes and rulers always excepted) to the said Isaac Gomez, jun. and Abraham R. Rivera, their factors or assigns, the said cargo, or any part thereof they shall think proper to be unloaded there, and in the place of such goods, the said vessel shall be ready to receive on board, whenever tendered along side by the said Isaac Gomez, jun. and Abraham R. Rivera their factors, or assigns, such other goods, wares and merchandizes (contraband goods, always excepted) as the said Isaac Gomez, jun. and Abraham R. Rivera, their factors or assigns, shall choose to ship on their own account, and being so laden or dispatched from Havre de Grace aforesaid, by the said Isaac Gomez jun. and Abraham R. Rivera their factors or assigns, the said vessel shall, with the first good opportunity of fair wind and weather then next presenting, set sail from thence, and as wind and weather shall serve, proceed with the said cargo to the port of [Page 17] Hamburgh aforesaid, and on arrival there, deliver the said cargo in good order and condition (the dangers of the seas and the restraints of princes and rulers always excepted) to the said Isaac Gomez, jun. and Abraham R. Rivera, their factors or assigns, they paying freight for the same as herein after is stipulated. And the said Diederick Kohne acting as aforesaid, doth further covenant, promise and agree, to and with the said Isaac Gomez, jun. and Abraham R. Rivera, that they may send one or more supercargoes, who shall have their passage free, during the whole of the said voyage, and part of the cabin to lye in, and make use of as they shall have occasion, as well in as out of port. That the said Isaac Gomez, jun. and Abraham R. Rivera, their factors or assigns, shall be allowed fifty running days for the loading and discharging the said cargo at this port of New-York, and the ports of Havre de Grace and Hamburgh, and that the crew of the said vessel shall render every convenient and customary assistance to the said Isaac Gomez, jun. and Abraham R. Rivera, their factors or assigns, and so end the said intended voyage.
In consideration whereof, the said Isaac Gomez, jun. and Abraham R. Rivera, do hereby for themselves, their heirs, executors and administrators, covenant, promise and agree, to and with the said Diederick Kohne, and the owners of the ship White Fox, his and their heirs, executors, administrators and assigns, that they will lade, employ and dispatch the said ship as herein before mentioned, and that they will well and truly pay, or cause to be paid to the said Diederick Kohne, his factors or assigns, for the freight or hire of the said vessel and cargo for the said entire voyage, the just and full sum of fourteen hundred pounds of sterling money of Great Britain, and if they ship any goods at Havre de Grace for Hamburgh, that they will pay an additional freight for the same, at the usual rates of freight from Havre de Grace to Hamburgh, exclusive of the aforesaid sum. The said freight money to be in full of all primage, hat money, pilotage, [Page 18] and port charges belonging to the said vessel, and to be paid in manner following, That is to say, if she discharges any goods at Havre de Grace, an equivalent proportion of freight to be paid for such goods in good bills of exchange on London at two usances, after delivery of the same at Havre de Grace, and the remainder of the freight at Hamburgh, or if entirely discharged at Hamburgh, the whole freight to be paid there in like manner on delivery of the said cargo to the said Isaac Gomez, jun. and Abraham R. Rivera, their factors or assigns, and the said Isaac Gomez jun. and Abraham R. Rivera, do hereby further covenant, promise and agree, to and with the said Diederick Kohne, that in case the said vessel shall by the order, or through any neglect or delay of them the said Isaac Gomez, jun. and Abraham R. Rivera, their factors or assigns, be detained longer than fifty running days for loading and discharging the said cargoes at this port of New-York, and the ports of Havre de Grace and Hamburgh, the same to commence the day of the date of these presents, and continue until the said ship White Fox is dispatched by them from hence, to commence again twenty-four hours after her arrival at Havre de Grace, and continue until she is dispatched from there, and to commence again at Hamburgh upon her being duly entered there, and continue until the vessel is wholly discharged and the freight paid. That they the said Isaac Gomez, jun. and Abraham R. Rivera, their factors or assigns, shall and will, well and truly pay, or cause to be paid to the said Diederick Kohne, his factors or assigns, for such demurrage (if any there be at and after the rate of five pounds [...] sterling money per day, daily and every day as the same [...] due. And for the true and faithful performance of all and [...] the covenants, agreements and [...] therein before contained, and which are by the [...] parties respectively to be performed, fulfilled and [...] they the [...] parties to the persents, do severally bind [...], and their several and respective [...] and administra [...] goods and [...] Diederick Kohne, acting as aforesaid [Page 19] the said ship White Fox, her freight and appurtenances, and the said Isaac Gomez, jun. and Abraham R. Rivera, the Merchandizes to be laden on board the said vessel) each to the other and to the executors, administrators and assigns of the other of them, in the penal sum of two thousand eight hundred pounds sterling, firmly by these presents. In witness whereof, the said parties hereunto have set their hands and seals, to three parts of these presents, the day and year first herein written.
- DIEDERECK KOHNE.
- ISSAC GOMEZ, Jun.
- AB. RODS RIVERA.
- AND HENRY DORHMAN,
- SAM. G. OGDEN.
It is agreed between the charterers, and the master of the within mentioned vessel, that twenty-three days have been expended in the port of New-York.
Received from Arnold Henry Dorhman, two hundred and ninety pounds sterling, of Great Britain, being the amount of several disbursements, and cash advanced me, on account of the freight of the ship White Fox, from here to Havre de Grace and Hamburgh, and which Mess. Isaac Gomez, jun. and Abraham R. Rivera are to deduct out of the first monies to be paid me, at the place of delivery of the cargo. In witness whereof, I have signed three receipts of the same tenor, the one fulfilled, the others void.
And the jurors aforesaid, upon their said oath, do further say, that the said Isaac Gouverneur and Peter Kemble, on the fourth and twenty-eighth days of May, in the year of our Lord, one thousand seven hundred and ninety-five, executed their two joint and several bonds, to Diederick Kohne, and Arnold H. Dorhman, in the words and figures following, to wit: Know all men by these presents, That we, Isaac Gouverneur and Peter Kemble, of the firm of Gouverneur and Kemble, of the city of New-York, merchants, are held and firmly bound unto Diederick Kohne, sailing master, of the ship or vessel, called the White Fox, now in the port of New-York, in the sum of two thousand and eight hundred pounds of sterling money of Great-Britain, to be paid to the said Diederick Kohne or his certain attorney, executors, administrators or assigns, for which payment to be well and faithfully made, we bind ourselves, jointly and severally, and our joint and several heirs, executors and administrators, and every of them, firmly by these presents, sealed with our seals, dated this fourth day of May, in the year of our Lord one thousand seven hundred and ninety-five.
The condition of the above obligation is such, that whereas, the said Gouverneur and Kemble, having previously to, and at the time of the execution of a certain charter party of affreightment bearing equal date with the above obligation, and made between the above named Diederick Kohne, by the name and description of Diederick Kohne, sailing master of the ship in or vessel called the White Fox, of the burden of one hundred and sixty-two Hamburgh [...] or thereabouts, acting for and in behalf of Berend Edward Haberstrok, master, and the owners of the said vessel of the one part, and Isaac Gomez, jun. and Abraham R. Rivera, of the city of New-York, merchants, of the other part, agreed to be and become a guarantee, or security for the performance of the covenants, stipulations, payments and agreements therein contained, and which, on the part and behalf of the said Isaac Gomez and Abraham R. Rivera, and each of them, are, is and ought to be [Page 21] performed, accomplished, kept, observed, made and performed. If therefore the said Isaac Gomez, & Abraham R. Rivera, and each of them, their and each of their heirs, executors and administrators, do and shall in all things, well and truly observe, perform, accomplish, fulfil, pay and keep all and singular the covenants, articles, clauses, stipulations, provisions, payments and agreements whatsoever, which on the part and behalf of the said Isaac Gomez and Abraham R. Rivera, and each of them, their and each of their heirs, executors and administrators, are, or ought to be observed, performed and accomplished, paid, fulfilled and kept, comprised or mentioned, in and by the above mentioned charter party of affreightment, Then the above obligation to be void and of none effect, or otherwise to be and remain in full force and virtue.
- JOHN WILKES,
- SAM. G. OGDEN.
Know all men by these presents, That we, Isaac Gouverneur and Peter Kemble, of the firm of Gouverneur and Kemble, of the city of New-York, in the state of New-York, merchants, are held and firmly bound unto Arnold Henry Dorhman, of the said city, merchant, in the sum of eighteen hundred pounds of sterling money of Great Britain, to be paid to the said Arnold Henry Dorhman, or his certain attorney, executors, administrators or assigns, for which, payment to be well and faithfully made, we bind ourselves, jointly and severally, our joint and several heirs, executors and administrators, and every of them, firmly by these presents, sealed with our seals, dated this twenty-eighth day of May, in the year of our Lord one thousand seven hundred and ninety-five.
The condition of this obligation is such, that whereas the said Gouverneur and Kemble, having previously to, and at the time of the execution of certain indenture or deed of covenant, touching certain payments to be made, concerning [Page 22] the chartering of a certain ship now at the port of New-York called the White Fox, of which Diederick Kohne is now master, bearing the same date with the above obligation, and made or mentioned to be made between Isaac Gomez the younger, and Abraham R. Rivera, both of the city of New-York, Merchants of the one part, and the above named Arnold Henry Dorhman of the other part, agreed to become a guarantee for the performance of the covenants, stipulations, payments, and agreements therein contained, and which on the part and in behalf of the said Isaac Gomez, and Abraham R. Rivera, are and ought to be performed, kept, observed, made and performed. If therefore the said Isaac Gomez, and Abraham R. Rivera, and each of them, their and each of their heirs, executors, and administrators, do and shall in all things well and truly observe, perform, fulfill, accomplish, pay and keep all and singular the covenants, articles, clauses, provisoes, payments, conditions, and agreements whatsoever, which on the part and behalf of the said Isaac Gomez, and Abraham R. Rivera, and each of them, their, and each of their heirs, executors and administrators, are or ought to be observed, performed, fulfilled accomplished, paid and kept, comprised or mentioned, in and by the above mentioned indenture or covenant, according to the purport and true intent and meaning of the same indenture or deed of covenant, Then the above obligation to be void and of none effect, or otherwise to be and remain in full force and virtue
- JOHN WILKES,
- SAM. G. OGDEN.
And the jurors aforesaid, upon their oath aforesaid, do further find, That after the sale and delivery of the said cotton and indigo as aforesaid, to wit, on the thirtieth day of May, in the year last aforesaid, being Saturday, at [Page 23] the city and ward, and in the county aforesaid, the said Louis Le Guen wrote and delivered to the said Isaac Gouverneur and Peter Kemble, at letter in the words and figures following, that is to say,
I had the honour of waiting upon you this morning, to advise with you respecting the steps to be taken to ensure the payment of the sales of cotton and indigo, which you made on my account to Messrs. Gomez, Lopez and Rivera; that object, so essential to me, ought not to be encumbered with any difficulty. I observe, however, and see it with pain, that we do not agree on the means and precautions to be taken. I presume that it is for want of understanding one another, being unfortunate enough not to speak your langauge, and an interpreter not being able to express the true meaning of a phrase which perhaps he does not understand perfectly. But this business being extremely important to me, and until we can agree upon this point, it is my wish, and I desire, 1st. That you insist on the conditions of the deed of sale, which relate to the insurance being performed, and require that the amount of the sale be entirely covered as well as the premium, that in all cases, the recovery of the insurance be sufficient for the payment of what is due to me. 2d. That you do not give any order for the disposal of the proceeds of this shipment without my knowledge and consent, that I may, if I think proper, avail myself of the fourth article of the contract, to receive the money in France or Hamburgh; and that we may come to a determination on this subject, be so obliging as to point out, and let me know the hour and place at which we may meet. I shall provide an interpreter, to avoid any loss of time.
[Page 24] And the jurors aforesaid, upon their oath aforesaid, do further find, That the said Louis Le Guen, did likewise on the same thirtieth day of May, after the writing and delivery of the said letter to the said Isaac Gouverneur and Peter Kemble, at the city and ward, and in the county aforesaid, in a certain conversation which he then and there had with the said Isaac Gouverneur, demand of him to suspend the departure of the said ship White Fox, until the insurances upon her cargo were entirely completed, to furnish him with a copy of the said contract or writing, respecting the sale of the said cotton and indigo, with an authorization to receive in France the amount of the engagements of the purchasers, and to give him an extract of the account of the said Isaac Gouverneur and Peter Kemble, that he might pay it to their entire satisfaction and discharge; to which demand the said Isaac Gouverneur, then and there in the presence of the said Isaac Gomez, jun. replied that the sum wanting to complete the assurances, was not of sufficient consequence to delay the departure of the vessel, and that he would provide for the deficit, and turning to the said Isaac Gomez, observed that it was his property, and that he had a right to depart with the said vessel when he pleased, and that he would on the next Monday, deliver to the said Louis Le Guen his account current. That the said Louis Le Guen, then and there represented to the said Isaac Gouverneur, that the proceeds of the cargo were specially liable for the payment of the money due from the purchasers, that he could not be burthened with the amount of the freight and premium of insurance, and demanded that the purchasers should give security for the payment of these objects, independent of the proceeds of the cotton and indigo, and that the said Isaac Gouverneur thereupon repeated to the said Isaac Gomez, jun. that the cargo was his property, and that he could dispose of it. And the jurors aforesaid, upon their oath aforesaid, do further said, That the said ship White Fox, proceeded upon her said voyage to Havre de Grace, with the said cotton and indigo on board, on the thirty-first day of May, in the year last [Page 25] aforesaid, and that the said Isaac Gouverneur and Peter Kemble did cause insurances to be made upon the said cotton and indigo, laden on board of the said ship from the said port of New-York to two ports in Europe at different premiums and in their own names, and paid the said premiums, amounting in the whole to seven thousand three hundred and sixty-seven dollars, in which said policies was a note as follows: "The vessel is neutral, and the property warranted American, proof of interest to be made here only, and not to be bound by the adjudication of any foreign court." And the jurors aforesaid, upon their oath aforesaid, do further find, That after the sailing of the said ship White Fox, to wit, on the sixth day of June in the year last aforesaid, at the city and ward, and in the county aforesaid, the said Louis Le Guen, wrote and delivered to the said Isaac Gouverneur and Peter Kemble, a letter, also produced in evidence to the said jurors, which is in the words and figures following, to wit (that is to say,)
I had the honour on the 29th of last month to request of your Isaac Gouverneur, on behalf of your house as my agents, that the Hamburgh vessel the White Fox, capt. Van Berend Edward Haberstrok, might not depart till the insurance to be made, pursuant to the contract with Messrs. Gomez, Lopez and Rivera, was entirely completed as we had agreed, nor before the requisite dispositions were made to secure the application of the proceeds of the cargo of cotton and indigo sold them on my account to the payment of what was due to me; having elected as I had a right to do, to receive the amount at one of the ports of discharge. Towards this end, I requested that my account with you might be prepared, in order to be adjusted, and that I might be enabled by the possession of the notes or some competent authorization, and an authenticated copy of the contract of sale, to receive the sum which was coming to me out of the proceeds [Page 26] of the cargo—and informed him that it was my intention, thus provided and enabled to go in person to Europe, to attend the progress of the affair and receive the payment to which I was entitled, that I had accordingly engaged a fast sailing vessel to carry me, and that the necessary arrangements being made, I should depart the third or fourth instant, to give my personal attention to the course of an affair of primary importance to me, and thereby perhaps prevent any disastrous consequences which might otherwise arise. These desires, intentions and expectations were afterwards reiterated by me, but not being met as I could hope, I, on the 30th of May, wrote the letter of which a copy is herewith transmitted, and to which I received no answer. To my surprise, I learnt the next day, that the vessel had sailed, and I am this moment ignorant that any adequate means have been attempted to secure the application of the proceeds of the cargo, according to the wi [...]h which I communicated, and the right reserved me by the contract, and I remain unfurnished with any documents or means by which I might take the measures that might appear to me adviseable. Even the precaution which I urged of addressing to the house of Le Conteulx and Co. of Rouen, an authenticated copy of the contract of sale, to the end that they might take care of my interest, was at that time refused, and as far as I know, has been omitted. To encrease the inconvenience of my situation, I am left with the embarassment of having on my hands the vessel I had hired to convey me to Europe, and may be exposed to loss from that source. In this situation I am sorry to be obliged to think that your house has failed in observing towards me a conduct, corresponding with my rights and intered, and I conclude, that it has made itself responsible for whatever losses may ensue. Desirous of obviating, however, as for as may still be possible, eventual misfor [...] to any party, I offer myself to co-operate with you in concerting without loss of time, such measures as may [...] practicable to give effect to the operation according to the true intent, and the rights of each party. To this end, [Page 27] we may avail ourselves of such legal or other advice, as the nature of the case may render it useful. But this offer is made upon the express condition, that the proposed co-operation shall not derogate in the end, from any claim upon your responsibility for consequences which may at this time exist, and that I shall retain the same rights and remedies that I might have if no such co-operation had taken place. With great consideration, I have the honour to be,
And the jurors aforesaid, upon their oath aforesaid, do further find, That the said Isaac Gouverneur and Peter Kemble, did on the same sixth day of June in the year last aforesaid, write and deliver to the said Lewis Le Guen, a letter, also produced in evidence to the said jurors, and which is in the words and figures following, that is to say,
We enclose you herewith an, account sales of the goods that were placed in our hands, which render £54,196,11,10 for their net proceeds. We also hand you a statement of our account current, and when we are in the receipt of all the money resulting from the sales of these goods and the drawback of the duties, there will be coming to you a balance of £ 47544, 15, 6. We further state, there will be coming to us £ 6256, 2, 6, to cover the present advances, &c. besides which we are responsible for the charter of the ship White Fox, in £ 3733, 6, 8. on your account. Under these circumstances we have grounded an objection to give you an authorization to receive the money in France for the sales of the goods, until we are first re-embursed and made secure. We have no objection to cooperate with you for the ultimate security of the property upon fair principles of justice and equity. And if you [Page 28] have separated yourselves from us with a view to entangle or make us in any respect, liable for the sale to Messrs. Gomez, Lopez and Rivera, we trust you will find a disappointment; such an idea is too ridiculous to admit of a moment's serious consideration. In justice to those gentlemen who have become the purchasers of the goods, we think proper to observe, that they are men of property and fair characters, and that we are disposed to treat them with a degree of delicacy throughout this unfortunate transaction, which will evidently end in a considerable loss, and prove a gross deception by their not having a competent knowledge in the article of cotton, it would therefore be with reluctance that we should undertake any thing that might operate to their prejudice or injury. Still we are not unwilling to devote ourselves to your interest, nor do we see any reason for all the difficulties and anxieties your imagination is apparently troubled with, without sustaining any real cause of alarm.
And the jurors aforesaid, upon their oath aforesaid, do further find, That the account of sales, and the statement of the account mentioned in the said letter of the 6th June, are in the words and figures following, to wit.
[Page 29]
| 1795. May 30. By net proceeds of sundries, received per the ship Cleopatra, capt. Beare, from the Isle of France as per sales herewith, | £. 54196 11 10 |
| By amount of duties on 150 bales cotton, delivered by his order to capt. Beare, which we credit him because the whole stands charged in the account sales, being 18 [...]2 29 dollars, | 740 18 4 |
| 54937 10 2 | |
| 1794. July 11, To his order in favour Mr. Beare, | £. 200 |
| 21, To cash paid him, | 800 |
| August 23, To cash paid duties on some ship's stores, and freight of a small box from Philadelphia, | 6 4 9 |
| September 10, To 1 bag sugar, 0. 3. 21lb. at 112s | 5 5 0 |
| 12, To cash paid him, | 400 0 0 |
| To freight of a box from Philadelphia, | 17 3 |
| October 3, To postage of sundry letters, | 2 4 6 |
| To cash paid him, | 1000 0 0 |
| [Page 30] January 20, To postage of sundry letters, | 1 7 0 |
| 23, To cash paid him, | 200 0 0 |
| February 23, To do. | 200 0 0 |
| 26, To do. | 1600 0 0 |
| April 7, To do. | 200 0 0 |
| 4615 18 6 | |
| May 18, To 1 Matt 0.3. 5 net Sugar, | 96s 3 16 3 |
| 50 casks 235. 2. 21 Sugar, | do. 1131 6 0 |
| 86 bags 62. 3. 13 Sugar, | do. 301 15 2 |
| 1436 17 5 | |
| Balance estimated to be due to Louis le Guen when the outstanding debts are received, and the drawback of duties recovered which are credited in the sales, | 47544 15 6 |
| To our commission on the above sums | 53597 11 5 |
| when received and paid to him at 21/2 p. ct. | 1339 18 9 |
| 54937 10 2 | |
| To amount of Isaac Gomez, Moses Lopez and Abraham R. Rivera's notes received in payment for cotton and indigo per agreement, which was executed [Page 31] at the particular request and with the approbation of Mr. Le Guen, | 48966 3 |
| To amount of drawback of duties credited in the sales but not yet received 12086 87 dollars, | 4834 15 |
| 53800 18 0 | |
| By amount of Mr. Le Guen's balance brought down to shew Gouverneur and Kemble's advance, | 47544 15 6 |
| Balance first coming to Gouverneur and Kemble, | 6256 2 6 |
| 53800 18 0 | |
| To balance brought down, | 6256 2 6 |
| Gouverneur and Kemble have also guaranteed the charter of the ship White Fox, at the request of Mr. Le Guen, which is payable in France, with bills on London £2000 sterling at 5 per. cent premium, | 3733 6 8 |
| 9989 9 2 |
[For a Statement of the Account Current, see a separate Sheet hereunto annexed.]
[Page 32] And the jurors aforesaid, upon their oath aforesaid, do further say. That upon the said sixth day of June, the said Louis Le Guen was indebted at the city and ward, and in the county aforesaid, to the said Isaac Gouverneur and Peter Kemble, in the sum of four thousand seven hundred and ninety five pounds, six shillings and three-pence, and the defendants held in their hands a custom house debenture, the property of the plaintiff, payable in the month of august one thousand seven hundred and ninety five, for four thousand eight hundred and thirty four pounds, and fifteen shillings, out of which the defendants were entitled to a commission of sixty pounds, eight shillings and ten pence, which would, after the receipt of said debenture, leave a balance due by the plaintiff to the defendants of twenty one pounds and three pence upon the general balance of their account as his factors and agents, and that he continued so indebted until and after the month of August aforesaid. And that they were bound and engaged for him and on his account as herein before stated. And that the said Isaac Gouverneur and Peter Kemble received the amount of the debenture aforesaid when it became due, and that the bonds which they had entered into, to the United States Custom-House as aforesaid, for and on account of the said Louis Le Guen, was cancelled on the first day of April, 1796.
And the jurors aforesaid, upon their oath aforesaid, do further say, That the said Isaac Gouverneur and Peter Kemble did charge the premiums of the insurances aforesaid to the said Isaac Gomez, jun. Moses Lopez and Abraham R. Rivera, and on the tenth day of June, in the said year, one thousand seven hundred and ninety five, received their joint promissary note for the same, payable in six months from that [...].
And the jurors aforesaid, upon their oath aforesaid, do further find, That the following letters were written and delivered by the plaintiff to the defendants, and by the defendants to the plaintiff, on the several days [...] [Page 33] after mentioned, at the city, ward, and in the county aforesaid.
I received yesterday your letter of the 6th inst. with the accounts mentioned in it, which to my surprise takes no direct notice of my letter to you of the same date. I pass by the singular insinuation which it contains, and confine myself to the real business in question between us. I observe with regret, that (though you have dropped one of the items which originally composed your claim, the premiums of insurance) you persist in the idea of retaining exclusively in your command and disposition, the whole of my property on the ground of a lien upon it, arising from your agency, which according to your own statement amounts to little more than one fifth of its value, and adhere to your objection, to give me an authorization to receive any part of it. It was ever my intention, and as I conceived imported in my original propositions, to provide for your payment and security to the extent of your just claims, as the condition of the authorization, I demand of you to receive what was rightfully coming to me. This was equally the intention of the co-operation proposed by my letter of the sixth, and I continue disposed to enter into that co-operation upon this principle. It is true there are several items in your account, [...] which we differ in opinion; yet I am ready to make suitable reservations and arrangements towards a right adjustment of them, but I cannot conceive that this ought to have prevented, or ought now to impede precautions and measures tending to secure a due application of the proceeds of the cargo, and to put me in possession of the funds to which I am indubitably entitled, and according to the election which was reserved for my benefit in the terms of the contract. On this ground of putting me in a situation to possess without delay, that to which I am indisputably entitled, and of leaving your just and legal claims upon the property, and otherwise, unimpaired, I am still willing [Page 34] to co-operate. But as I conceive there were pretensions and omissions in the first instance, which render you responsible for consequences, as it may now be too late to repair the deficiency, as every moment's delay increases the risks, I still make the offer of co-operation, on the condition of holding you in the same state of responsibility in which you were prior to that offer. At the same time it will be explicitly understood, that in acceding to the cooperation on this condition, you do not incur any new or additional responsibility. With this explanation, I urge an immediate and positive answer whether you will concur in an arrangement on this base. Moments are precious. That which might be useful now, may quickly become useless by procrastination. The nature of the cooperation will be an after consideration. The terms to be settled between us, according to our mutual opinions, and the advice we may mutually take.
YOUR favor of yesterday is received. It is not our wish to throw any embarrassments in your way, but the magnitude of our claims, and our engagements in your behalf, render it proper that we proceed with caution. To stop the ship until the insurance was completed, was not in our power. Messrs. Gomez, Lopez and Rivera stipulated to make insurance, but this might be done, as well after, as before the vessel sailed; and if neglected altogether, it would amount to a breach of contract only, for which the vessel could not be detained. With respect to the premium for insurance paid by us, although we omitted it in our last account, we do not assent to the force of your objection to the payment of it. The insurance being effected for your benefit and security, it is more reasonable that you should run the hazard of [Page 35] recovering back the premium than we, who act only as agents. To remove however every impediment to a settlement, and manifest a spirit of accommodation, this charge has been for the present dropped. We cannot forbear remarking, that notwithstanding your solicitude to obtain the authorization in question, you constantly uphold a claim upon us for certain consequences, without pointing out in what manner we may have rendered ourselves responsible. Although we are not conscious of any act which can give you this claim, and are therefore easy on this head, yet you cannot but perceive the impropriety of our admitting, that we have incurred this responsibility, which we should do, were we to come to a settlement upon the terms proposed by you. As to our lien on the notes, and other documents relating to this transaction, we never had any doubt of our right to withhold them, and also to refuse you any authority to act, until the whole of our demand was satisfied, and we satisfactorily secured against contingent claims. Indeed as the contract is in our name, and we are bound under a penalty of 20,000 dollars to endorse on the notes, which are also in our favor, the payments as they are made, we might insist (were we disposed as you insinuate to create difficulties) upon all the monies passing through our hands, or those of an agent chosen by us, and for that purpose keep possession of every paper until the transaction was finally closed. But we are sincerely anxious to put an end to a controversy, which did not originate with us; for this purpose we beg leave to refer you to our letter of the 6th instant, in which we were so explicit as to the terms upon which we were willing to give you the authority you desire, and to co-operate with you, that nothing remains to be added. To give you, however, a further proof of our wish for a speedy and amicable arrangement, we are willing, if these terms are not agreeable to you, to submit the whole matter to arbitration.
I acknowledge the receipt of your letter of yesterday. Though, in my opinion, it confirms my pretensions upon your eventual responsibility; yet as I am willing to consider it in other respects as a step towards meeting me on the ground of some reasonable accommodation, as this is intirely my wish, so far as it may be practicable, and I learn that you are about to dispatch at Havre, which it may be important should be the bearer of some final arrangement, it is my intention immediately to make you, in writing, propositions for an adjustment of the affair; saving to myself, in the mean time, all my rights against you, from what has heretofore passed.
AGREEABLE to the contents of my letter yesterday, I have the honor to transmit you here inclosed proposals which would set aside all altercations respecting our respective pretensions, until the time when the result of the payments of Messrs. Gomez, Lopez and Rivera shall be known, saving the settlements of our accounts which might take place immediately. If your desire for an arrangement is as sincere as that which actuates me, I flatter myself that you will acquiesce to those proposals; proposals agreeable to the fairest principles of justice. As moments are precious, I earnestly desire that you favour me with an immediate answer.
[Page 37]
| 1st. £6256, 2, 6. Balance in their favor, exhibited by the drawback, which will be paid them by the customs, in the term of three months | £4834 15 |
| Their commission of receiving and paying, charged in Mess. Gouverneur and Kemble's account on £53597, 11, 5. at 2 1-2 pr. ct. which according to the regulations of the chamber of commerce, appears due only on the returns from this state to any other part of the United States, | J1339 18 9 |
| A deficiency of about 7200 lb. sugar of Mr. Beares's parcel, and which ought to be made good to me, | 370 |
| £6544 13 9 | |
| which would present an overplus exclusive of my other claims upon sundry charges, the missing of two bales of cotton, &c. &c. | |
| 2d. J3733 6-8. Their gaurantee for the amount of the freight, assenting to the frieght being paid out of the first proceeds of the cargo (saving my claim on whoever it may justly concern) this gaurantee becomes void, or nearly so. |
From this exposition, it appears, that all the claims of Messrs. Gouverneur and Kemble ought to be confined to that arising from the bond, they have given at the customs, for the due return of the certificates of the landing of the said goods in a foreign port, amounting to Dol. 12086, 87. Desirous of disposing of my property, and being determined [Page 38] to make use of the right which has been reserved to me, in the second and fourth articles of the contract of sale made to Messrs. Gomez, Lopez and Rivera, enabling me to receive the whole or any part of their obligation in France, I decide on making the following proposals to Messrs. Gouverneur and Kemble, which will convince them of my disposition to come to an arrangement.
1st. To give me an authenticated copy of the contract of sale, and authorization to receive out of the proceeds of the cargo, after the freight will have been paid, and immediately after that payment only, one hundred thousand dollars, in part of the obligations of Messrs. Gomez, Lopez and Rivera, enabling me fully to receive that sum.
2d. To keep at their disposal the balance of the above mentioned obligations, amounting to dollars 22415 37 for their bond to the customs, saving to myself the disposal of this balance when the landing certificates are arrived, and after the final settlement of our account.
3d. To drop for the present all altercations, respecting the responsibility which I have a right to exercise against Messrs. Gouverneur and Kemble, if the delay of the necessary dispositions in France should be productive of some injury to me in the recovery of the obligations of the purchasers of my goods.
I presume that Messrs. Gouverneur and Kemble will be so much the more disposed to acquiesce to the above proposals, that they have ever intimated the high opinion they had of the honesty and solvability of Messrs. Gomez, Lopez and Rivera, and that the obligations of those purchasers of dollars 22415 37 are only designed to insure in the course of twelve months the arrival of the certificates of the due landing of the said goods, which certificates cost them nothing, and which Messrs. Gomez, Lopez and Rivera have engaged to return, by one of the articles of the contract.
Desirous as we are of coming to an accommodation with you, we cannot, consistent with a regard to our own security, accede to the propositions which accompanied your favour of this date. We deem ourselves entitled to a re-embursement out of the first proceeds of the cotton and indigo. If therefore we authorize you to receive one hundred thousand dollars, it may exhaust the whole of the proceeds—in which case our security will be considerable diminished, as we could have recourse only to Messrs. Gomez, Lopez and Rivera, on their notes.
The proposals we have already made and repeated, are those to which we must yet adhere, they being such as the nature of the transaction and our own safety point our. We also beg leave to remark to you, that we are desirous of some prompt decision to the business, as it becomes urksome and unpleasant to us to magnify so many words about it under any imaginary pretensions, and as it becomes necessary for our I. G's. health (who has the principal management of it with you) that he should go into the country, we acquaint you that he will remain but a few days more in town, before he will set off on a jaunt that will occupy him some weeks abroad—we are therefore desirous of hearing from you immediately, in point, upon this question, to understand finally any determination that is to be made.
I cannot easily express my chagrin at your reply of the 12th to my letter of the 12th instant, I had hoped that my propositions would have appeared to you entirely reasonable, [Page 40] or at least that you would have made me such others in return of a specific nature, as you did yourselves approve. But instead of this, you merely refer me to your former propositions, of which I know not any except a reference to arbitration—I am obliged therefore to conclude still more firmly than heretofore, that it is your determination at all events to retain my whole property in your disposition, till the final winding up of the speculation by Messrs. Gomez, Lopez and Rivera, and the receipt by you in this country of the proceeds of my cargo. Thus depriving me of the election which was reserved by the terms of the contract, to receive the money coming to me in Europe, and disappointing all the measures I had taken and projected on this basis. I protest once more against this mode of proceeding, and all the consequences of it, and I demand for the last time, that you forthwith furnish me with an authenticated copy of the contract of sale, and with a competent authorization, to receive at the port of discharge, whatever sum shall remain of the proceeds of the goods sold on my account to Messrs. Gomez, Lopez and Rivera, after first deducting and reserving at your disposal, such a sum as shall be completely sufficient to cover you for the general balance of your account, and for all that you have made yourselves accountable for on my account, also for the commissions you claim as well on the receipt as on the sale, and even for damages in case of protest of the bill of exchange to be drawn for the freight or charter money, and for insurance of the money which you claim to cover you for your advances and responsibilities to the United States. This nevertheless is not to be understood as a final admission of any claims on your part, which may not be according to law, and the usage of trade; but as a preliminary arrangement for your eventual security. I further declare, that any other security you now rightfully possess is to remain unimpaired by your compliance with this demand. As I am not less anxious than you can be, to terminate this discussion, Hope for your immediate answer, [Page 41] agreeing or refusing to comply with this my demand.
Upon reviewing our late correspondence, we cannot but think that we have manifested every disposition to bring the controversy between us to a speedy and amicable determination. We have offered, and again repeat the proposal, that we will deliver into your hands, all the papers and notes which regard this transaction without delay, upon your giving us satisfactory security in this country; to pay us in a reasonable time our commission, and such sums as we may have disbursed, or made ourselves responsible for, on your account, and also sufficiently secure us against the payment of such sums as we may eventually be called upon by reason of our interference in this business. When it is considered that we have a right to insist upon immediate payment of the balance of our account, as the condition of our delivering up these papers, you cannot deem this proposition unreasonable. We are certainly not obliged to receive payment in France, especially at a time when so many difficulties attend getting money from that country, and were we to accede to the terms held out by your favour of this date, we should be obliged to wait the event of an application for the money to Mess. Gomez, Lopez and Rivera in France, before we could have recourse to you. Much more has already been said upon this subject than was necessary; to conclude, we conceive ourselves entitled to keep all the securities we have at present, and were we disposed to be litigious, we might, even now, apply to you in a judicial way for payment of our demand. This being our situation, we have no hesitation in rejecting your offers of this day as inadmissible. If you are so solicitous of having authenticated copies of the contract, and an authorization [Page 42] to receive the money, we are willing to give them upon the terms herein before mentioned, or upon any other which three indifferent Gentlemen shall point out. We hope this proposal will not only be deemed fair, but that it will remove the chagrin occasioned by ours of the twelfth instart.
I have received your letter of yesterday. Well satisfied that the pretensions which you advance (as far as I recollect for the first time) in that letter, as the condition of delivering into my hands the papers and notes which regard the transaction in question between us, are not warranted by the usage of trade, as relative to the course of business; I will only remark to you, that whatever might have been the case, prior to the departure of the cargo, and if you had then been willing to come to a proper adjustment of the affair with me, has been rendered impracticable by the change of circumstances. By your not meeting me duly when I demanded of you my account, to the end that it might be adjusted and settled to your entire satisfaction and full discharge, by your refusing to permit any intervention of mine in the affair, by your declaring that you took all upon yourselves, and engaging or encouraging the buyers to depart with the cargo immediately, you have placed me under the impossibility of putting into execution any of the dispositions I had meditated, and now that I am deprived of my property as the mean of engaging the aid and interpositions of friends, a demand is made upon me which for its indefiniteness alone is altogether exceptionable. I confine myself therefore to demanding of you without delay, an authenticated and certified copy of the contract of sale made with Mess Gomez, Lopez and Rivera, and to declaring to you, that in [Page 43] as much as you have by the circumstances which preceded the departure of the cargo, and in addition thereto by refusing to comply with all the propositions and demands I have made you since, entirely deranged my plans, and deprived me of the power of commanding my funds in France, and of all the advantage from the employment of them there, I hold you responsible, and shall insist upon your responsibility for all losses, damages, and disadvantages which may ensue, including an indemnification for the derangement of the measures I had adopted for proceeding in person to France, to possess myself of my property.
P. S. If you will revise my last propositions, you will observe that it leaves untouched all your securities and resources whatever. Having perceived that the copy, instead of the original, has been handed to you, and consequently that it could not be signed, I hasten to rectify this mistake in forwarding this, and I desire that you would return to the bearer of it that which is not signed.
Mr. Frs. Barretto, who had promised to me to furnish the certificate of landing at Havre of a parcel of sugars per ship White Fox, having presented me one, which did not appear to me to be drawn in due form, I advised him to call on you and request the necessary informations to procure another from Havre, told me in answer that that business was settled as it was, and you had credited my account with the drawback on the above said parcel of sugars. Fearing he should have misunderstood you, I now request to know of you gentlemen, if Mr. Gomez has sent you the necessary certificate, and if it has been [Page 44] admitted at the custom house to annul your bond for returning the said certificate.
We have received a letter from you this day, dated on the first of the month, wherein you make an enquiry respecting a certificate Mr. Barretto presented to us to cancel our bond for some sugars exported in the White Fox. We wanted Mr. Barretto to leave us the certificate to see if it could be made to answer that purpose as it was irregular, but he objected to it before he had seen Mr. Cherriot. Since then we have heard nothing further about it—if it is in your possession, it would be well for you to send it to us, and we will see what may be further needful. We have received from the custom house, the debenture of duties on your goods which we shall account for—but we must be indemnified for our bonds, or the needful papers must be returned to us to procure them cancelled. Directions were given Mr. Gomez for that purpose respecting the goods under his care, but the sugar in question he never had any thing to do with. That unfortunate adventure of Mr. Gomez, as we were well aware of, is like to turn to a ruinous account. After waiting some time at Havre, he has been obliged to expose it [...] further risks, and expences by proceeding to Hamburgh for a market. Under all these disagreeable circumstances, attending so respectable a property, we cannot help regretting that you have withdrawn yourself from us, and the steps you have been pursuing, which must ultimately operate to your prejudice while it appears to us so needful you should have associated with us, to have concerted all necessary means for its preservation and security which we have at all times held ourselves open to [Page 45] operate with you in, still no endeavour will be wanting on our parts, at least so far as we remain unrestricted.
I have received the letter you have addressed me on the 17th instant; Mr. Barretto has not explained himself well to me, if he had, I would have sent you the certificate in question; it is annexed with this letter and you will see that they have drawn it in the name of John Richard, jun. as if he had been the shipper. I wish it could be admitted at the custom house, to cancel your bond. The declaration to recover the drawback has been made either in your name or in that of Mr. Gomez, jointly with the cotton and indigos, as it appears by your having received the debentures for the duties paid.
In case that certificate could not answer the purpose, I beg you would send me a copy of the declaration made when the goods were shipped, to enable me to write at Havre accordingly, and have a declaration made in support of the above certificate; you will oblige me to send it as soon as possible, to use the first opportunity to write for that purpose; as to the latter part of your letter, I must refer you to the correspondence heretofore had between us for an answer; with this single observation in addition, that the suggestion of co-operation at time of day after the obstacles to it, when it might have been a means of security, appears to me rather out of season. If however you have any specific thing to propose, in which I can be useful without impairing my pretensions on your responsibility, I shall be ready to pay due attention to it.
WE acquainted you a few days since, that the certificate transmitted us had been found sufficient at the custom-house to cancel our bond that was given on the sugar shipt to Havre de Grace. Yesterday we received from Mr. Gomez at Hamburgh the certificate relative to the cotton and indigo, which is not made conformable to the directions given him, and consequently won't answer to cancel our bond at the custom-house, as the collector will not accept of it. We herewith inclose it to you, together with copies of a letter from Mr. Gomez to us, and one to Gomez, Lopez and Rivera, for your government, to adopt such stepts as you may think proper, to the end of preserving your property.
I herewith inclose the certificate of the landing of the cargo here, for to enable you to recover the drawback according to your desire. Markets being in a most miserable situation in France, induced me to bring the cotton and indigo here, which proves as bad, as it will not yield the amount of invoice and expences thereon attending, by a loss of at least sixty per cent; of which I have by this opportunity informed my house, who will confer with you on the occasion. In my next I shall advise my house for the payment of insurance, and amount due H. Dorhman on account of charter-party. I have the honor to be,
WITH your favor of the [...] inst. I received the certificate which Mr. Gomez has sent you of the landing at Hamburgh of the cotton and indigo per ship White Fox, which not being drawn conformably to the instructions you had given him, has been rejected by the collector of the custom-house. Not being myself well acquainted with the forms prescribed, and not knowing the instructions you may have given Mr. Gomez, I cannot judge in what point it is deficient, but I think there is yet time enough to have it corrected; and I return it with this letter, so that you make of it what use you think fit. The same letter covered also copy of a letter from Mr. Gomez to your house, dated at Hamburgh the 12th of August; with another copy of a letter which the same gentleman wrote the same day to his house of Gomez, Lopez and Rivera. I am sorry to see that affair turn out so unfavourably, and the loss which those gentlemen are likely to suffer from it. It is one of those accidents to which every speculation of that kind is exposed; and I am yet in hopes that the result will not be so unfavourable as Mr. Gomez seems to apprehend, by the start of the price of cotton in the London market, and a little patience. However the business may turn out, I should hope that you have taken every precaution to insure to yourselves the whole amount of the obligations of Messrs. Gomez, Lopez and Rivera, and should be sorry if you were to suffer on account of the issue of that operation. For my part, I can do no more than to refer you to what I proposed in my preceding letters, and repeat again to you, that I am yet disposed to co-operate with you, and ready to take the measures which might appear most advisable for the preservation of that property: provided always, that that co-operation shall not in the least impair my claim to your responsibility; reserving to myself at the same time all my rights to it, as it such a cooperation [Page 48] had not taken place. I have the honor to remain sincerely,
YOUR favour of this date has been duly received. While we regret the great loss which Messrs. Gomez, Lopez and Rivera are in danger of sustaining by this unfortunate speculation, and that you may eventually be a sufferer, we think it incumbent on us to repeat to you, lest our silence might be misconstrued, that we do not in any event hold ourselves responsible to you for any thing beyond what shall be actually received on the notes of those gentlemen. The sale was concluded under your immediate direction, and you well know that no security was received in payment but the notes of the purchasers; we are at a loss therefore, what you can mean, by hoping that we have taken every precaution to secure the whole amount of this obligation. We know of no measures necessary to pursue for the preservation of the property, having received no intelligence of its being in any other danger than that of not finding a good market. But if you think any thing can be done for your interest, we shall cheerfully pursue such reasonable directions as you may give us as your agents on the subject. We thank you for your expressions of sorrow on our account; but on a review of our conduct, we find no room for charging ourselves with any neglect or inattention to your concern, and see no occasion therefore, as far as we are personally concerned, to be alarmed at the issue of this business.
As a vessel will sail in a day or two for Hamburgh, we take the liberty to inform you, that we are willing, if it will meet your approbation, to authorize the American consul residing at that port, or any other gentleman we can mutually agree upon, to receive from Messrs. Gomez, Lopez and Rivera, payment on account of their notes, agreeable to the fourth article of their contract with us. If you deem any other authority necessary, we shall have no objection to join in it, if the same shall be consistent with our safety and security. As Mr. Gomez is at Hamburgh with the cargo, it is probable such authority will find him there, and that he will be disposed to treat with our agent upon fair and equitable terms. The money we propose to remain in the consul's hands, subject to our draft, or subject to your order; provided you will either pay, or give us good security, for our demands against you. In case of any difficulty in adjusting our account, we will submit the same to the monthly committee of the chamber of commerce, or to any other indifferent persons.
We addressed you the last evening on the subject of your concerns with Mess. Gomez, Lopez and Rivera, and have now to communicate, that we this morning received the inclosed letter from them, containing proposals for a compromise, which is submitted to your consideration, that you may inform us how far it will be agreeable to you for [Page 50] us to treat with them on that head, and we shall wait your instruction.
I have received your two letters of the 7th and 8th instant, the last inclosing one from Mess. Gomez, Lopez and Rivera of the 7th. You are perfectly apprised of the ground on which I conceive myself to stand. I have made a contract upon a definite price, and I have legal advice upon which I rely, that you are my guarantee in case of disastrous consequences, looking to your responsibility, I feel tranquil for the event, and I cannot be expected to abandon or weaken so good a ground. With this saving, which I make once for all, as to what I now add, or may hereafter say upon the subject, I reply, to your first letter, that I think it would be for the interest of all concerned, that the proceeds of the cargo in Hamburg should be paid into the hands of, and deposited with some person, or house of unquestionable responsibility. Not being acquainted with the mercantile standing of the American consul, I can say nothing, but I have entire confidence in either of the houses of Mess. Bernherd and Nootnagal, Lubbert and Dumas, and Matthuson and Silem. To your second letter, that were I in consideration of the probably unfortunate issue of the adventure (rendered so however as, I conceive from ill management) disposed to make a voluntary sacrifice, the proposition of Mess. Gomez, Lopez and Rivera is too far short of any thing that could reasonably be thought to be [...] to. With due consideration,
P S. Concerning the arbitrage you have proposed for the settlement of the account you have remitted me, you will always find me disposed to submit my claims respecting said account, to the decision of experienced and disinterested merchants.
We wished for your sake to pursue joint measures with respect to the property sold Mess. Gomez, Lopez and Rivera, as the interest of all parties naturally pointed out, and under this impression addressed you on the 7th and 8th instant. Your answer satisfies us that you have no other object in view, than to induce us to take some steps that may place us in a situation of responsibility, which we do not think proper to incur. As to our having already rendered ourselves answerable for the amount of the sales, we do not believe you sincerely entertain the idea yourself. The only definite terms upon which you ever demanded the authorization, which is made the pretext of a misunderstanding between us, and which are contained in your letter of the 12th June, are such as we conceived ourselves warranted in rejecting at that time, and have had no reason to change our opinion. The reasons which influenced us have already been detailed and are too obvious to require repetition. To discuss this point further will neither be pleasant nor useful. We are prepared to meet the question in any shape you may choose to bring it forward, in full confidence of having discharged our trust with integrity, and every proper attention to your interest, and a perfect reliance on those tribunals which must ultimately decide between us. Under a conviction however, that it is your wish that we may assume a discretion which may eventually render us liable, we think proper to inform you that we shall not empower any house in Europe to receive any payment on the notes we hold, without an express authority from you in writing for that purpose. Unless we receive explicit directions from you on this [...], we shall think it our duty to wait until the money is remitted to [Page 52] this country, or until we receive advice that it is placed in Europe, so as to be commanded by us without any risque. Your answer respecting an arbitration, is not less evasive than other parts of your letter, but it is not surprising that such should be your language so long as you "feel tranquil about the event," and while you rely with so much confidence on our guarantee in case of disastrous consequences We have only to add, that although a further correspondence will probably be productive of as salutary consequences, yet we shall ever continue ready until the final settlement of this business, to listen to such instructions as you may have a right to give, and we consistently with our own safety and interest pursue.
I have received your letter of this day. I will only rereply to one point of it, you mistate in supposing I wished to draw you into any new responsibility; my only intention is not to release you from any to which you are now subject. I thought had sufficiently explained myself on the subject of the deposit of the proceeds of the cargo at Hamburgh, but since I have been misunderstood I will add that I entirely approve the idea, that if the deposit be made with [...] of the houses I have mentioned, or with any other we may agree upon, I will take the risks of it to the extent of the sum deposited, and it shall in no wise be deemed to implicate you in any new responsibility. But I [...] to this only on the ground, that I cannot obtain from you an authorization to receive the proceeds myself, which I should prefer, and if obtained, would immediately depart for Hamburg. The sum I shall receive [Page 53] will be in deduction for the one I claim, preserving at the same time, all my right for the remaining balance, which I mean to maintain in either case.
Agreeable to the request contained in your letter of this date, we lose no time to inform you, that we are ready to execute the necessary powers to either of the houses which you mention in your letter of the 9th instant, in such form as our council shall jointly agree upon, for the purpose of receiving the proceeds of the cargo sold to Messrs. Gomez, Lopez and Rivera, in this case it is understood, that you secure us for all our claims, and against all the contingent demands which may be made against us on account of our agency, which in case of any dispute shall be immediately adjusted, if you agree, by the monthly committee of the chamber of commerce, or by any three merchants we can fix on. This is not only reasonable, but perfectly consistent with our last offer, and whatever confidence you may place in the houses alluded to, they are entire strangers to us, and it cannot be expected that we should permit you to leave this country, and consent to this property being placed in the hands of persons unacquainted with us, without having our just rights secured. We shall be ready to carry into effect these proposals as soon as you can attend to the business. And are Sir,
I am willing to concur in the proposition made by your letter of the 11th instant, upon condition that you will enter with me into an agreement to be adjusted between [Page 54] our council, which shall leave you in the same state of responsibility in which you may now be, neither adding to nor diminishing it. I connect with this the idea of leaving to three merchants, to be agreed upon between us, to determine the particular items of your account about which we differ in opinion.
Inclosed in a draft of a letter of attorney to Messrs. Lubbert and Dumas of Hamburgh. If it meets your approbation, we will execute and forward it without delay.
Your letter of the 18th inst. has been received; as you do not notice mine to you of the 15th, I enclose a copy of it, lest by accident it should not have come to hand. On the supposition that you have received the original, I can understand your last letter in no other sense than as a refusal to consummate your own propositions of the 11th inst. to which my letter of the 15th accedes; with only the addition of a precaution necessary to my safety, and not injurious to yours. Thus understanding it, I must submit to the alternative, as the best thing which is left in my option. I accordingly consent to your authorizing the deposit in the hands of the house you name. But I cannot forbare observing, that if the deposit is to be made with a single house, that I should have preferred that of Messrs. Matthuson and Silem, or if with two [Page 55] houses, that of Bernherd and Nootnagel, or at least a division of the deposit between these two houses, as these deposits will be at my risk, it is not unreasonable to expect that the one or the other will be done. I repeat that in consenting to this particular operation at my risk, it is not my intention to wave my general claim upon your responsibility heretofore intimated.
We have this morning received your letter of the 19th inst. accompanied with a copy of that of the 15th inst. We have already expressed, that we are averse to that sort of indefinite correspondence your letters of late seem to occupy; and however secure you may conceive yourself in the idea of your pretended responsibility against us, we feel altogether indifferent whether the controversy between us is decided in a judicial way, or entirely submitted to the arbitration of discrete merchants. The rectitude of our conduct will then appear, and which of us merit the fair reflection of having exercised attempts to embarrass or throw difficulties in the way of providing any possible or necessary precautions.
I have received your letter of the 21st inst. I can make no particular answer to it, because it is altogether vague, and to me unintelligible; all I can say is, that my letters of the 15th and 19th appear to me very explicit, and that [Page 56] in not complying with them, I have the greater reason to complain, and you to reflect seriously on the consequences.
To demonstrate a further proof of our disposition to take all imaginable care of your interest, we enclose you a copy of our letter to Messrs. Lubbert and Dumas of Hamburgh, and as another security to the property, if you think proper we will write them in addition to remit a part or the whole of what they may receive to the Banking House in London of our friends, Messrs. Smiths and Atkinson, in whom we have implicit confidence as men of unquestionable property. We shall take care to forward three copies with their enclosures of our letter to Messrs. Lubbert and Dumas, and we hope it may answer your sanguine desire.
I have been favoured with your letter of the 23d inst. therewith enclosed a copy of that one of the 22d inst, you write to Messrs. Lubbert and Dumas in Hamburgh, I am surprised you do not notice mine of the 22d. I do accept the proposal, concerning the deposit, as the only let in my power, and referring to my letter of the 19th instant, that as you are unwilling to divide the deposit between two houses, I consent it be laid into the hand, of Messrs. Lubbert and Dumas, as the deposit is at my risk, I expect it shall not be disposed of, in any case [Page 57] without my consent. I keep for my own use the copy of your letter to Messrs. Lubbert and Dumas, but if you had some addition or alteration to do in it, I hope you will be so good as to let me know of them; it is necessary you send a copy of the sale contract to Messrs. Lubbert and Dumas. I repeat, that in consenting to this particular operation at my risk, it is not my intention to wave my general claim upon your responsibility heretofore intimated.
I confirm to you my last of 26th inst. to which I have not been favoured with any answer. Having been informed since by Messrs. Lopez and Rivera, that Mr. Gomez, their co-partner, was at London taking some measures to get there the cargo of cotton and indigo, I fear the powers transmitted to Messrs. Lubbert and Dumas of Hamburgh, will not effect the desired purpose. I now request of you, gentlemen, you will let me know, whether you have received any information concerning that determination, and whether you meditate any further means for securing the proceeds of the cargo, for the benefit of whomsoever it may concern.
Gouverneur and Kemble's compliments to Mr. Le Guen, and acquaint him, that they are in possession of the information respecting the operations of Mr. Gomez in England, which makes it necessary the power should [...]o forward to Messrs. Smiths and Atkinson of London, [Page 58] instead of Messrs. Lubbert and Dumas of Hamburgh, which is prepared ready for the purpose, and they will take care to forward it. 'Tis probable from their information the property will be removed from Hamburgh to London, part of the cotton was actually on its way. They will therefore pursue the necessary steps to touch as much of the money as can be done in Europe, not doubting of his approbation.
I have received your note of the 2d instant. The principal aim of the enquiry was to ascertain what your note verifies. Though I will not disapprove of any measures you may take to secure the proceeds of the cargo for whomsoever it may concern; yet it must be understood, that I assume no special risk upon the subject, and that I look more and more to your eventual responsibility. The going with the cargo from the port of discharge at Hamburgh, to London, changes essentially the nature and effect of the contract.
Messrs. Gouverneur and Kemble's compliments to Mr. Le. Guen, and they transmit to him herewith the copy of a letter they have just received from Mr. Gomez, relative to the cotton and indigo sold Gomez, Lopez and Rivera. Also an extract of a letter relative to it, from Messrs. Smiths and Atkinson of London; and after he [...] used them attentively, Gouverneur and Kemble would be glad to receive his directions respecting it, if he wishes any thing to be done on their parts.
I have received your note of the 25th instant, with copies of letters of the 5th and 6th of January last, from Mr. Gomez and Messrs. Smiths and Atkinson. In answer, I refer you to mine, to you of the 6th of January last; and have only to add, that situated as the affair is, I have no directions to give.
And the jurors aforesaid, upon the oath aforesaid, do further find, That by the custom of Normandy, in which province the port of Havre de Grace is situated, the vendor of a cargo of goods and merchandizes has a priviledge or lien upon the said cargo, for the price of it until it is sold by the purchaser, and actually delivered to another person. And that in consequence of such lien, or priviledge, such vender, if he thinks himself in danger of losing his security, may apply to the consular tribunals for redress, and that such tribunals, proceeding upon principles of equity and good conscience, would interpose to prevent the removal of such cargo by the purchaser to another place, unless upon good security being given to the vendor it appeared that it would thereby be subjected to great danger or deterioration, and this, even if there was a clause in the contract of sale allowing the going to another port; but that in the last case very strong proof would be required that the purchaser was in real danger of suffering by the removal.
And the jurors aforesaid, upon their oath aforesaid further find, That the said Louis Le Guen always was and yet is, a citizen of France.
And the jurors aforesaid, upon their oath aforesaid, do further find, That the said Isaac Gouverneur and Peter [Page 60] Kemble, did not at any time previous [...] day of December, in the year of our Lord one thousand seven hundred and ninety five, elect to receive the proceeds of the said cotton and indigo at the port of discharge, nor give to the said Louis Le Guen any authorization to receive the proceeds of the sales of the said cotton and indigo in Europe or any part thereof, and did on or about the twenty-second day of December aforesaid, elect to receive the said proceeds at Hamburgh, and afterwards did on the second day of January, in the year one thousand seven hundred and ninety-six, elect to receive the said proceeds at London.
And the jurors aforesaid, upon their oath aforesaid, do further, find That in the month of June, one thousand seven hundred and ninety-five, a demand was made by the plaintiff of the defendants, for an authorization to receive from the said Gomez. Lopez and Rivera, agreeably to the terms of the contract aforesaid, at the port in Europe where the said ship White Fox should discharge her said cargo of cotton and indigo, such sum or sums of money as should be due to the plaintiff on account of the same, after deducting therefrom and leaving subject to the controul of the defendants, a sum sufficient to re-emburse them for the balance due the defendants on adjustment of their accounts, and also a sufficient sum to indemnify the defendants against all engagements they had entered into an account of the plaintiff in the course of their said agency, with which demand the defendants refused to comply.
And the jurors aforesaid, do also find as aforesaid. That the defendants, when such demand as last aforesaid was made, offered and proposed to resign up all the papers, notes, and other documents relating to the said agency into the hands of the said plaintiff, and give him a competent authorization to conduct the said business, on his the plaintiff's paying the defendants the balance of their said account, and on the plaintiff's [...]curing the defendants in this country agency any engagements [...] might have [Page 61] entered into, or responsibilities to which they had exposed themselves in consequence of said agency, with which offers and proposals the plaintiff neglected and refused to comply, but whether by reason of the premises the said Isaac Gouverneur and Peter Kemble, became liable to the said Louis Le Guin, as is stated in the first count of his declaration, the said jurors are ignorant, and they pray the advice of the court in the premises. And if the court of the people here, shall be of opinion, that the said Isaac Gouverneur and Peter Kemble by reason of the said premises, have made themselves liable to pay the plaintiff the amount agreed on by the said contract as the price of the said cotton and indigo, then the said jurors do say, upon their said oath, that the said Isaac Gouverneur and Peter Kemble, did undertake and promise, in manner and form, as the said Louis Le Guen hath, in and by the first count of his said declaration above alledged, and they assess the damages of the said Louis Le Guen, by reason thereof over and above his costs and charges by him about his suit in that behalf expended, to one hundred and nineteen thousand three hundred and two dollars and sixty-six cents, and for those costs and charges to six cents, but if the said court shall be of opinion, that the said Isaac Gouverneur and Peter Kemble, did not, by reason of the premises, become liable as aforesaid, then the said jurors find that the said Isaac Gouverneur and Peter Kemble, did not undertake and promise in manner and form as the said Louis Le Guen hath in and by the said first count of his said declaration above alledged.