THE following was, by consent of parties, to be deemed a part of the record, e­qually as if it had been a formal bill of ex­ceptions, viz. ‘On the trial of this cause, the counsel for the defendants insisted,Bill of ex­ception. that the plaintiff had not sustained any special dam­age; and, to shew that, they offered evi­dence, and produced a witness to prove, that the cargo of the ship White-Fox went to Havre de Grace; that finding the mar­ket bad they proceeded to Hamburgh, where the market being also bad, the car­go was carried to London, which was the best market in Europe, and there sold for a higher price than could have been had in either of the other ports; which evidence was over-ruled by the court.’

Reasons of their judgment in the court be­low, assigned by Mr. Justice Lansing (in the intermediate time appointed Chief Jus­tice) and Mr. Justice Benson—

Chief Justice LANSING. This action was bro't by the defendant in error, Chief Jus­tice Lansing's opinion. against the plaintiffs, as his factors, substantially—

1st. For not electing, pursuant to his instruc­tions, to receive the proceeds of certain parcels of cotton and indigo in Europe: And

[Page 77] 2dly. For not giving to the defendant autho­rity to receive at the port of discharge, so much of the proceeds of the sales of such cotton and indigo as remained, after deduct­ing a sum sufficient to cover the plaintiffs for the general balance of their account, and other claims and responsibilities, in con­sequence of their agency.

This action, in its consequences affecting private interests, of uncommon magnitude, has been strenuously contended between the parties, in every stage of its progress which would admit of urging their adverse and totally irreconcilable pretensions.

In the ardor of controversy they have however conceded these points, which with­out their concession would not admit of a doubt—That in ordinary cases a factor is bound to comply with the instructions of his principal, in the disposition of the subject entrusted to his care—That the factor has a lien on it, for all his advances, commissions and responsibilities; and that he is not com­pellable to part with the subject or its pro­duction, if not converted into cash, until those demands are completely satisfied; for, if the subject is converted into cash, the reason for pledging the whole for the security of the factor ceases; as by retaining the sum he is entitled to, or responsible for, he can incur no farther risk of failing in an ultimate satis­faction.

No doubt could arise respecting the appli­cation of these principles to this case, while [Page 78] the subject remained to be disposed of in the customary mode of sale, at the place it ap­pears both parties originally contemplated a disposition of the subject.

But the parties having by a contract, to which they all assented, made an arrange­ment to convey the subject to Europe, their situation was by that means varied as to the local exercise of their respective rights— which, I take it, by that contract they reci­procally agreed to modify, so as to carry it into effect in all its parts, preserving their mutual relations and rights, as principals and factors.

The questions which arose on the contract were:

1st. Whether the plaintiffs were bound to elect to receive the proceeds of the sub­ject of factorage in Europe?

2dly. Whether the defendant had a right to exact payment of the surplus from the plaintiffs in Europe, after satisfying the whole amount of their commissions, ad­vances and responsibilities? and

3dly. If the plaintiffs were bound to make such election and were subject to make such payment, what ought to be the measure of damages?

As to the first point—the subject of factor­age was evidently entrusted to the plaintiffs for the benefit of the defendant—his interest [Page 79] was the primary object to be attended to in the conduct of his factors, and every instruc­tion given by him, not incompatible with their rights, it was their duty to conform to and carry into effect—the election reserved to the plaintiffs by the contract with Gomez, Lopez and Rivera, must of necessity be con­sidered, as for his benefit and emolument, as inseparably incident to the trust confided to them—for every disposition of the subject, pursuant to the instructions of their principal, could only be for his advantage exclusively; unless positive contract detracted from, or made a different modification of his interests. From the most attentive examination of the contract given in evidence at the trial, I could discover no traits in it, to satisfy my mind that it was the intent of the parties that this obvious principle should be departed from—the reservation of the rights of election to re­ceive the proceeds of the cotton and indigo, either at New-York or in Europe, and the premium to be received by the plaintiffs, if they should elect to receive in Europe, were, in my opinion, clearly intended and ought to enure solely for the benefit of the defendant —if so, the plaintiffs could not, after con­senting to export the subject, avoid a compli­ance with the instruction of their principal as to the exercise of the right of election, without violating their duty.

As to the second point it appeared to me that tho' the plaintiffs were not compellable to part with the subject confided to them as factors, to be disposed of at New-York, so as to permit its exportation, without being satisfied [Page 80] for the whole amount of their commissions, advances and responsibilities; yet, that by assenting to the exportation, they virtually stipulated to exercise the rights they had ac­quired, as factors, at the port of discharge in Europe; by that means relinquishing the lo­cality of their agency and consenting to leave it at large and thus attaching their rights and duties to the subject, to be exerted and exer­cised at whatever place it might be transmit­ted to, in pursuance of the contract, to which they were parties, and thus placing them­selves in the same situation, and preserving the same relations at the port of discharge, as they were placed in, and as subsisted between them at New-York, previous to the arrange­ment contemplated by the contract.

If this is a legal and consistent exposition of the contract, it would result, that tho' the plaintiffs might retain the controul of the property of their principal, either personally or by substitution of others, whom they supposed trust worthy, and for whose conduct they were content to be responsible, until it was converted into money; yet the instant it was so con­verted in their hands, or those of their agent, it was their duty, after retaining the amount of their commissions, advances and responsi­bilities, to pay the surplus to the defendant, at such port of discharge, if he should require it, and that as their agency was indispensible to enable the defendant to avail himself of his rights, under the contract in question, by becoming parties to it, they expressed their readiness to do, and submitted to the obligation of doing every thing in their power, and which [Page 81] could be reasonably expected from them as factors, to facilitate the arrangement they had acceded to, so as to produce consequences most advantageous to their principal, not im­pairing their own rights.

In this case the contract was made with, and in the names of the plaintiffs; the de­fendant must rely upon their agency, or on authority received from them, to enable him to exert any power in controverting the des­tination, or obtaining any part of the proceeds of the subject; if they refused their aid to ef­fect both or either of these objects, they were unattainable by the defendant. I hold that he had a right to exact from the plaintiffs this aid, so far as to enable him to receive the sur­plus of the proceeds of the subject, after satisfying the demands of the plaintiffs at the port of discharge—that their refusal to autho­rise him to receive such surplus, was a viola­tion of their trust, which amounted to full evi­dence of an intent to convert the whole to their own use, regardless of the interests or instructions of their principal; and that for such violation they became liable as in cases where the fac­tor had contrary to the instructions of his prin­cipal credited, or credited for a longer period than that limited by such instructions—In both these cases it has been held, that the giving such credit is evidence of a disposition by the factor on his own account, and that he is answerable for the amount to his principal, whatever may be the result of such sales.

In giving this opinion, I lay out of the case, as totally inapplicable to its real merits, the [Page 82] various propositions reciprocally made and re­jected by the parties—as propositions made by one party which the other was not oblig­ed to accede to, they could not influence a decision on the questions which arose in the cause—The demand made by the defendant in his letters of the 15th of June, is such an one, as I think, the defendant had a right to exact a compliance with, and that the refusal on the part of the plaintiffs to comply with it, was in effect a dereliction of the relation in which they had placed themselves as factors to the defendant, of which he might avail himself, to hold them accountable for the whole subject, by substitution, instead of Go­mez, Lopez and Rivera.

As to the third point—

All the facts respecting this transaction in Europe, were of a nature incapable of being developed in the course of legal investigation here, till several months after the vessel sailed from New-York—The defendant's right of action, however, accrued upon the refusal of the plaintiffs to comply with his demand. If we depart from the subject, and do not con­sider its value as settled by the contract to which the plaintiffs were parties, I know of none, to which a resort could be had for the measure of damages; and I have, when this cause was first presented for my judicial de­termination, sought it with a considerable de­gree of solicitude, arising from the important consequences of that opinion, as affecting the plaintiffs. I could not, however, satisfy my­self that any other measure could be resorted to [Page 83] on this occasion; and if the withdrawing the subject from the controul of the principal—if assuming an absolute and uncontroled dispo­sition of it, amounted to a conversion of the property of the principal by the factors to their own use, the amount of the sales to Go­mez, Lopez and Rivera, deducting the amount of the plaintiffs' demand, appears to me, to present not only a reasonable, but the only rule of damages in this case.

These are the reasons which induced the opinion I have given in this cause. I refrain from saying any thing respecting the state of the pleadings as the opinion of the Supreme Court was not particularly required relative to them. It will therefore suffice merely to observe, that I supposed the plaintiff had sus­tained his action.

Mr. Justice BENSION.Mr. Justice Benson's rea­sons. The question in this cause is, whether the trust which the plaintiffs in error took on themselves for the defendant in error, was such, as that he had a right to demand from them what he did demand in his letter of the 15th June, 1795? The facts from which this right is to arise, are those on­ly which preceded, and including, the sailing of the ship, with the cotton and indigo on board, on the 31st May; none of the subse­quent facts, or matters found by the verdict, have varied or in any manner aflected the trust, as it then was, and are therefore no further ma­terial or useful to be considered, than as some of them may serve, in the nature of circum­stantial proof, to give a more full and distinct knowledge of the preceding facts; hence it will [Page 84] be perceived, that the question doth not depend on the law of principal and factor, as to the rights of the latter to retain; the rules of law on this subject, generally, are acknowledged to be, that the factor hath a right to retain the property of the principal until his legal demands against him are paid; that however small the amount or the demands, and how­ever great the amount of property may be, the factor is not held to deliver up any parcel of the property, but may retain the whole; that he hath a right to retain, not only until he shall be reimbursed such sums as he may have paid, but also until there shall be de­posited with him a sum, competent to answer whatever he may have become liable to pay on account of his principal, as well contingent­ly as absolutely; and that he is not held to ac­cept of a security of any kind instead of a de­posit, nor a deposit of goods instead of a deposit of money; but these rules being applicable to cases only where the principal demands the pro­perty to be delivered up to him, are inapplica­ble to the present case; in which the princi­pal, so far from demanding to have the pro­perty or any part of it delivered up to him, demands only a mean to enable him to re­ceive in another and distant place, where the the same is payable by the vendees of the property, ‘the sum which may remain after the factors shall have deducted and reserved at their disposal, a sum completely sufficient to cover them for the general balance of their account, however claimed;’ and ac­cording to this statement of the question, it will also be perceived, that to seek for parti­cular rules or for adjudications precisely and [Page 85] throughout apposite to it, would be fruitless and unnecessary; and that for a decision on it, there must be a reliance wholly on judg­ment or discernment, in applying to the case, in its peculiar and appropriate circumstances, the universal maxim, that with the END the MEANS also must be intended to be granted. In this view of the controversy, and of the grounds on which it rests, it necessarily divides itself into the following enquiries: 1st. Is the stip­ulation in the fourth article of the contract, reserving an option to the vendors to receive the whole, or any part of the consideration money for the goods, in Europe, in prefer­ence to leaving it to be receivable in this country, to be adjudged to have been intend­ed for the interest or benefit of the defend­ant, the principal, instead of being for the in­terest or benefit of the plaintiffs, the factors or substitutes; or in other words, is the inter­est or benefit of the defendant, so to be sep­arated from, or paramount to, any interest or benefit of the plaintiffs, as to be deem­ed the end to have been intended to be an­swered by that stipulation? If so, then— 2dly. Was what the defendant demanded from the plaintiffs, in his letter to them of the 15th June, 1795, a fit and reasonable mean to that end?

With respect to the first of these questions, it would appear to me that a mere statement of it precludes the necessity of proof, or de­monstration of the truth of the affirmative; if the stipulation specified in the question, is for the interest or benefit of the plaintiff, I do not see a reason for not supposing every [Page 86] other stipulation in the contract equally so— I cannot even imagine a rule or test by which the stipulations intended for the interest or benefit of the party principal are to be dis­criminated from those which were intended for the interest or benefit of the party factors; so that the reasoning, as I view it, to prove that the stipulation under consideration was for the interest or benefit of the plaintiffs, must terminate in a conclusion that the whole contract was intended for their interest and benefit. The sale of the goods, the persons to whom, and the terms on which they were sold, were by the "express direction" of the defendant; the plaintiffs accept and submit to the direction; they are mere instruments to effect what he had determined was for his own, not what was for their, interest and ben­efit—The sale was of the unsold residue of the cargo of the ship Cleopatra, received by the plaintiffs to be sold on account of the defend­ant; had the plaintiffs a different or a greater interest or benefit in the last sale than they had in the preceding sales? In their accounts, their commissions are the only interest or ben­efit they claim. On a calculation of whose profit or advantage was it to be, to elect hav­ing the consideration money for the goods made payable in Europe, instead of leaving it to be payable in this country? Was it to be on a calculation of profit or advantage to the plaintiffs? To whose use was the premium, or in effect additional price, of five per cent. on the goods to be, in the event of the option to receive the money in Europe; to the use of the plaintiffs or to the use of the defendant? Most certainly to the use of the latter; and [Page 87] that consideration alone appears to me to fur­nish an argument decisive on the point; and I will only add, that the truth of the proposi­tion, that the sale in question, and every term and condition of it, is to be considered as in­tended for the interest or benefit of the de­fendant, primary to, and exclusive of, any in­terest or benefit to the plaintiffs, except their commissions, is so evident to my mind, that it is not without difficulty I can persuade my­self that I have rightly understood the plain­tiffs' counsel, when I suppose they meant to contend for any thing different from or con­trary to it.

With respect to the second question also, I think the truth is not less obvious, and that it ought almost to suffice merely to state, that to suppose the right to elect to have the money receivable in Europe, should be reserved for the interest or benefit of the defendant, and consequently that the plaintiffs were bound in virtue of their trust, to exert this right for him, whenever he should require them, and that they should at the same time have a right to refuse to enable him to receive the balance there, but to withhold it from him, until, after having been received there by them or their agent, it should be remitted to this country, is to suppose two rights in one and the same subject, claimed by opposite par­ties against each other, and which can never be made to consist together. Where was the inconvenience or grievance of which the plaintiffs could complain, if they were to be held to pay the defendant his balance in Eu­rope? The business of receiving the money [Page 88] from the vendees of the goods, of making out and settling the account with the defendant, and paying him the balance, could have been done by an agent; not so conveniently to the plaintiffs, it may be admitted, as if done in this country; but was the inconvenience of doing these acts by another instead of them­selves, or abroad at a sea-port in Europe in­stead of at home, such as the law must intend the hazard of it not to have been within the trust or agency? Surely the law must intend the reverse—Waiving, however, the general intendment of law, it might still be asked, what would be the particular intendment in this case, from the express, and as it were spe­cial provision in the contract, that the money, if the option should be to receive it abroad, should be payable also to the agents of the plaintiffs? The objections to the demand of the defendant for an authorization to receive his balance in Europe, as declared by the plaintiffs themselves in their letter, in answer to the demand, are, ‘that they were not o­bliged to receive payment in France, es­pecially at a time when so many difficulties attended getting money from that coun­try, and that if they were to accede to the terms held out by the defendant, they would be obliged to wait the event of an application for the money to the vendees of the goods, before they could have re­course to the defendant for the payment of the balance of their account.’ I have already expressed the reasons of my opinion, that the defendant had a right to demand from the plaintiffs to declare an option to re­ceive the money in Europe; and it is only [Page 89] requisite in addition to state, that this right of the defendant could never depend on a greater or less degree of difficulty, if any, to the plaintiffs in getting their portion of the money, their commissions and disbursements, from that country; and further, that if the plaintiffs had at any time brought a suit a­gainst the defendant, or as they have express­ed it, ‘had recourse to him, or applied to him in a Judicial way,’ for the payment of their demand, it is not possible he could have avail­ed himself of the authorization from them, to receive his balance in Europe, to any possible purpose of defence whatever. Let the fact that the plaintiffs had furnished him with the authorization, and on the terms as contained in his letter, be put in the form of a plea, and it will instantly be discovered to be scarcely better than a nullity.

These are the reasons for my judgment, that the defendant, as plaintiff in the court below, had maintained his issue on the first count of the declaration.

The remaining question is, as to the rule by which the jury have assessed the damages, and which from the record appears to have been "the amount agreed on by the contract as the price of the cotton and indigo," Dama­ges, whether the assessment of them is by the court as their immediate act, or by a reference to a jury, are to be according to definite rules; but where there can be no definite rule in the case, as for instance, where exemplary or implied damages would be warranted, still the [Page 90] assessment is not to be wholly without rule, it is to be according to legal discretion or arbi­trament. The case of a returned protested bill of exchange, is a case of a definite rule; the damages are to be twenty per cent. on the a­mount of the bill, with interest from notice of the protest, and the costs of the protest, with­out any enquiry, and consequently without any addition or diminution, in consideration that the plaintiff hath or hath not sustained more or less, or any special or indeed any ac­tual damage whatever—Suits in trover and in trespass for carrying away goods, are also so far usually cases of definite rule, as that the damages are to be at least the value of the goods at the time of the conversion or tres­pass, or in other words, at the time when the right of action accrued, without regard to any subsequent deterioation, however casual—I state at least the value of the goods, for the damages may be made to exceed that amount where the withholding or taking the goods was aggravatedly injurious—The case now before the court is within the reason, and therefore within the rule, in the cases of tro­ver and trespass. I have already mentioned such of the rights of the factor as can have any relation to the questions between the pre­sent parties, I now briefly state his duty gen­erally to be, that he is to follow the orders of his principal, and for a breach of the orders he is to answer in damages to his principal; if the breach is merely PARTIAL, and as to certain parcels or particulars only, he shall not be held to answer further than as to such parcels or particulars; but if the breach is such as to involve the whole of the property [Page 91] intrusted to him, he shall then be held to an­swer for the value of the whole of the proper­ty, and as such value was, at the time the breach of orders took place; and if the proper­ty consisted in credits, to answer to the amount of the credits— The principal may from that moment abandon to him the whole of the property. Whenever the principal, in order to a suit against the factor for not delivering up the property when ordered or required, tenders a sum for commissions and other de­mands, the principal tenders and the factor refuses at their peril respectively; for if it should appear that the sum tendered was suf­ficient, the principal will recover the value of the property at the time of the tender; and the rule is the same, whenever the factor refu­ses to do an act which the principal was en­titled to demand, and which affects the whole of the property of the principal. If such are the duties of the factor, and if such is the measure of the damages or retribution to the principal for his injury, where these duties have been violated or departed from, the con­clusion, that the damages were duly assessed, in the present suit, is obvious.

I close with remarking, that the controver­sy between the parties may be satisfactorily resolved in this as its cause, that the plain­tiffs have accepted an agency, and bound themselves to execute it in a foreign country, if their principal should at any time elect it to be most for his benefit, without previously calculating and providing for their own pro­fit and security, if it should then come in competition with his; and that afterwards [Page 92] and when too late, under apprehensions, either mistaken or founded, and as to the justness of the remark, it is immaterial which, of dan­ger or disadvantage of some kind, they re­fuse to execute it, unless they can have eve­ry benefit both of profit or security, and e­ven convenience, equally as if they were to execute it at home.

Cases delivered into court by the parties res­pectively, omitting the recapitulation of the facts found by the special verdict.

Case on the part of the plaintiffs.Case on the part of the plaintiffs in error. The Su­preme Court having given judgment for the defendant, who was plaintiff below on this verdict (three judges to two) the plaintiffs (the defendants below) have prosecuted a writ of error, returnable into this honorable court, and assign the following reasons, why the said judgment should be reversed—

I. Because no good cause of action is sta­ted in the defendant's declaration, the prin­cipal averment of which is directly contrary to a written contract under seal, and most pro­bably contrary to the sense and meaning of the parties to the suit. The averment allud­ed to is, that the right to receive payment in Europe, out of the proceeds, was intended for the special benefit of Mr. LeGuen. It is an established rule of law, that no averment shall be admitted, to contradict a deed under seal.

II. Because, the jury have not found that this right was for the special benefit of the [Page 93] defendant. The court, therefore, cannot pre­sume this was the case, especially as it is op­posed to another part of the verdict, which states, that the contract, as it appears on re­cord, was made by the intervention and ex­press consent and direction of Mr. LeGuen; and being an averment essential to the de­fendant's recovery, it ought to have been proved as any other fact, and might have been proved as such, if it had really been the case by producing an agreement in writing for that purpose from the plaintiffs.

III. Because, it is repugnant to every rule of construction, to admit any interpretation of a written contract, directly opposed to the latter of it. To receive the money in Europe might have been a principal inducement to the plaintiffs' lending their names to this trans­action. Whether it was so or not, it is suffi­cient to say, that by the terms of the con­tract, they are to have the election, and they are to appoint an agent to receive the money.

IV. Because, no good consideration is sta­ted for the promise alledged to be made by the plaintiff, in the first count of the declara­tion. It is said it was their ‘duty to pursue the direction and request of the defendant, touching the exercise of this right,’ and that in consideration of this duty, they agreed so to do. The consideration here stated, is subsequent to the sale, and precludes every idea of an antecedent agreement on the part of the plaintiffs, to pursue such direction and request; such agreement is not even pretend­ed to exist. To determine it was their duty [Page 94] so to do, the court must first get rid of a contract, which so far from imposing it as a duty on them, left it at their option to make the elec­tion or not as they pleased, and left to them alone, and not to Mr. LeGuen, the choice of an agent. The words of the contract are, they may at their option receive, &c.

V. Because, the declaration is altogether uncertain and contradictory. In one part it avers, that the right reserved to receive the proceeds in Europe, was for the advantage of Mr. LeGuen, subject only to the lien and right of the plaintiffs, to have and receive the gen­eral balance of their account, and to be se­cured for such other claims and demands as they might and should be entitled to and have, by reason of their agency for the said defend­ant. Thus admitting, without any qualifica­tion, and in its fullest latitude, the lien for which the plaintiffs contend. But by another averment it is stated, that the plaintiffs were bound to give him an authority to receive these proceeds, after certain reservations and deductions, that is, as he explains it, after leaving in the hands of Gomez, Lopez and Rivera, a sum sufficient to satisfy them for their general balance and the claims afore­said. Which two averments are. directly re­pugnant to each other, the one admitting, and the other destroying every idea of a lien.

VI. The declaration is uncertain in ano­ther respect, and therefore also had. The de­fendant avers, that he requested the plaintiffs to elect to receive the proceeds of the proper­ty, or so much as would be due to him, after [Page 95] certain reservations and deductions. But it does not appear what was the amount of those reservations and deductions; on the contrary, it results from the verdict that these very sums were matters in dispute between the parties. It became, therefore, impossible to give the authority in the way it was demanded.

VII. The declaration is defective in ano­ther respect; the action being brought for a refusal to give the defendant a power to re­ceive the price of the cotton and indigo in Europe, after certain reservations, it was ne­cessary to aver, as the very gift of the action, that the property was sold in Europe. This averment is neither found in the declaration, nor is the want of it supplied by any part of the verdict; and unless such sale took place, the power became nugatory, and no damage could ensue from a refusal to give it.

VIII. The declaration is also had, because all the inferences and deductions made by the defendant, in the first count, are contrary to the known and established laws which govern relations between principals and factors.

IX. But if the defendant's construction of the contract be just; if the right to receive the proceeds in Europe was reserved for his special benefit, it does not at all weaken the plaintiffs' defence; because, as factors, they had a valid lien, or a right to hold all the notes and securities of the defendant in their hands, and also to keep at their control and disposal the price of the goods, until actually [Page 96] received by them or their agent, not only as a security for the general balance due to them, but for all their incidental charges and advan­ces, and also for their indemnification against all engagements and responsibilities which they had come under on the defendant's ac­count. They had also, in virtue of this lien, a right to refuse the defendant possession of any of the papers, and every facility towards obtaining his money, until it was actually re­ceived by them or their agent in Europe, or until they were paid, their advances, and sa­tisfactorily indemnified against every claim, however contingent or remote.

The doctrine of the court below was, that they had a right to insist on actual payment, not only, for their balance, but for every e­ventual engagement whatsoever.

X. Because the plaintiffs' lien, if any they had, which is admitted by the declaration, extended to the whole subject; not to a por­tion or residue of if, as it is pretended; and therefore they were not bound to listen to a­ny proposal, however plausible, which in the smallest degree impaired their security. A lien is defined to be, ‘That hold or tie which a man has upon goods, or other things in his custody, or on the price of goods in the hands of buyers, and by which he has a right to retain them until he is paid what is due to him, and also the sums for which he may have become surety for his principal.’ This is the only true and natural definition of a lien; a lien in the qualified and restrictive sense of the defendant was never heard of un­til this day. If a single authority, out of any hook whatever, can be produced in support of this novel and unheard of doctrine, the plain­tiffs will abandon this ground of their defence as desparate and untenable.

The Judge who delivered the opinion of the Supreme Court in this cause, admitted that a factor may retain for his disbursements and responsibilities entered into on account [Page 98] of his principal; and the defendant admits that by his proposal of the 15th June, it was implied that the plaintiffs should be paid and indemnified, as a condition on which only he was to receive the authorization required.

It is also contrary to the understanding of Mr. LeGuen, as expressed in his letters.

XI. If the plaintiffs had this lien, they say they were not bound to accede to any one of the offers of the defendant. These offers will be examined at large in the argument on their part, and it will be shewn that every one of them went to the total destruction of their lien as factors.

XII. But if the plaintiffs' lien was only of the partial kind admitted in one part of the defendant's declaration, they contend that all his offers were inadmissible, as any one, if ac­ceded to, would have put it in the defend­ant's power to have defeated the operation of it altogether, even within the limits he admit­ted it to exist. This will be also clearly shewn in the course of the argument.

XIII. The plaintiffs maintain there is no­thing in this transaction which differs it from the common cases of principals and factors. If any clauses were inserted in this contract of sale for the benefit of the principal, is not this the case in every sale by a factor? Have not all such sales in view, as a primary object, the principal's benefit? But was it ever before heard that the particular terms of the sale, or the mode or place of payment, controled the [Page 99] lien of the factor who negociated it? Suppose Mr. LeGuen had wished to receive his mo­ney in Lapland or Peru, would it not be ab­surd to say that Messrs. Gouverneur and Kem­ble would also be bound to follow the pur­chasers to those countries? Would it not on the contrary be a strong reason for their in­sisting on payment here, before they gave their principal any authority to receive what was coming to him abroad. The truth is, the terms of a contract between a factor and pur­chaser have nothing to do with the rights of the former as against the principal—Innume­rable and various as such contracts must have been in this country and in Europe, such a proposition was never heard of before. Here again the plaintiffs require but one solitary le­gal authority in support of this doctrine, and they will give up the controversy. A lien is a right so attached to and inherent in a fac­tor, as to be paramount to every claim of his principal—It is a right conferred on him by law, not depending on the will of the princi­pal—No agreement is necessary to give it ef­ficacy—no mode in which the principal may chuse to vend his goods—no way in which he may fix the payment—no country to which the purchasers may be going—no nation of which the principal may be a citizen—no in­convenience to which he may be exposed—no terms for his benefit which may be en­grafted into the contract of sale, can alter, diminish or destroy those rights to which his factor becomes entitled, according to the u­sage of trade, the moment he steps forward in that capacity to assist in or lend his name to the sale. Doubts and perplexities, inces­sant [Page 100] and endless, as the nature of contracts, would result from a contrary doctrine, in the place of that simple and uniform rule which now prevails. At present, every merchant knows he has a lien or hold on the goods of his employer, for the balance of his account and his collateral undertakings. It matters not whether he is directed to takenotes payable at Havre-de-Grace or at the bank of New-York; his lien in either case is precisely the same: In the former case, indeed, the lien of an American factor should be more highly favored and pro­tected, because his risque, where payment is to be made abroad, is considerably enhanced.

XIV. But if the plaintiffs were bound to receive payment in Europe and to pursue the purchasers thither—they contend that their lien extended to the whole price of the goods in that country, and that they were not bound to give a power to the defendant to receive any part of these proceeds until they were actually received by an agent of their appointing, in whose hands they might make the reservations and deductions which the defendant allows they were entitled unto.

XV. If the plaintiffs had no lien whatev­er, they were not bound to give the defen­dant the authority he demanded without an indemnity which has never been offered.

1st. Because the contract being in the name of Gouverneur and Kemble and containing a heavy penalty, no suit could be brought upon it, but in their name; if then they had given Mr. LeGuen the authority he ask­ed, [Page 101] and when he asked it, and he had abu­sed it, they might have exposed themselves to the penalty of the contract, or at least to an action of covenant for damages. That he might have abused it, appears from what is stated to be the custom of Normandy.

2dly. They were not bound to give the authority until a sale, because the property being warranted American, and Mr. LeGuen being a French citizen, such authority in case of discovery would have exposed the cargo to capture and condemnation, and thus have vitiated the policies which in case of loss were the plaintiffs only security. If by such an act the plaintiffs had exposed the car­go, the purchasers also would have had a claim on them for damages.

XVI. The defendant ought not to recover; because, if the plaintiffs have been guilty of a neglect or breach of duty, the defendant sustained no injury, and therefore is not en­titled to any damages. The jury refer it to the court to say whether the plaintiffs have made themselves liable to pay the amount a­greed on by the contract, as the price of the property. This sufficiently shews, whatever arguments may be urged to the contrary, what rule the jury observed in assessing dam­ages, and precludes every idea of any spe­cial injury.—From the whole verdict it man­ifestly appears none was proved or sustained.

Every action on the case ex contractu, is brought to recover "pecuniary satisfaction for the damage sustained." It does not follow [Page 102] that an injury is the necessary consequence of every misconduct in a factor—cases can and will be put in the course of the argu­ment to illustrate this position, and even to shew that a principal may sometimes be bene­fited by a palpable breach of orders in the factor; in which case it would be absurd to, say the latter should make him any compen­sation. That in an action on the case, ground­ed on contract, the plaintiff is entitled to a compensation commensurate only with the damage actually sustained, is one of those self evident legal axioms which almost pre­cludes the possibility of demonstration; cases however, numerous and in point will be pro­duced.

The following are the words of Sir Wil­liam Blackstone on this subject:

‘A promise is in the nature of a verbal covenant, and wants nothing but the so­lemnity of writing and sealing to make it absolutely the same. If therefore it be to do any explicit act, it is an express contract as much as any covenant, and the breach of it is an equal injury. The remedy in­deed is not exactly the same, since instead of an action of covenant, there only lies an action upon the case, for what is called the undertaking of the defendant; the failure of performing which is the wrong or injury done to the plaintiff, the damages whereof a jury are to estimate and settle—as if a builder promises to build a house and fails, the party has an action on the case against the builder for this breach of his [Page 103] express promise, and shall recover a pecu­niary satisfaction for the injury sustained by the delay. [3d vol. p. 157.]’

A few pages further on, he proceeds: ‘Every one who undertakes any office, em­ployment, trust or duty, contracts with those who employ or entrust him to per­form it with integrity, diligence and skill, and if by his want of either of those quali­ties, any injury accrues to individuals, they have therefore their remedy in damages, by a special action on the case. If an officer of the public is guilty of neglect of duty, or a palpable breach of it, as if the sheriff does not execute a writ, or willingly makes a false return, in both cases, the party aggriev­ed shall have an action on the case, for da­mages to be assessed by a jury. If a sheriff suffers a prisoner during the pendency of a suit to escape, he is liable to an action on the case. An attorney who betrays the cause of his client, by which it miscarries, is liable to an action on the case for a repa­ration to his injured client. [P. 263.]’

In actions of covenant, to which he has likened a special action on the case, the same author remarks, ‘the proceedings set forth with precision, the covenant, the breach and the loss, which has happened thereby, whereupon the jury will give damages in proportion to the injury sustained by the plaintiff, and occasioned by such breach of the defendant's contract. [P. 156.]’

Can language be more forcible, or intelli­gible!

[Page 104] Professor Wooddeson also, in his view of the law, declares that such actions are for the breach of a promise, ‘to recover pecuniary satisfaction for the damage thereby sustain­ed.’ If the court can bring themselves to believe contrary to the whole tenor of the verdict, that the defendant has sustained da­mage by our negligence or default in not giving him a power to receive the proceeds of certain property in Europe, which certain­ly if they ever existed sell far short of the a­mount of the notes—if, we say, the court can possibly bring themselves to believe that the plaintiffs are liable and that the defendant has actually suffered damage to the amount of the notes, then and then only can they affirm this judgment—their undertaking be­ing, as stated on record and as implied by law, not to pay a certain specific sum, but the damages which may have accrued to their employer by their default, with which da­mages the amount of the notes has no con­nection.

Even in actions on the case for a deceit, although ever so gross a fraud be practised, it is necessary that some injury be sustained, or no action will lie; the rule in this case being, and it has been settled for centuries past in England, that "fraud, without damage, gives no cause of action." In such cases, says Wood­deson, ‘it is necessary to remember that the ground of complaint be, that there be ac­tual detriment injuriously sustained.’ If this be the case, in actions where fraud has been practised, how much more strongly does the rule apply in actions on the case where mis­conduct [Page 105] or negligence only and no fraud is alledged; where difference of opinion on a point of duty, but no wilful deception, has occasioned a controversy between the parties.

XVII. Because the rule of damage con­tended for in the present case is directly op­posed to the defendant's declaration. The action is brought for the plaintiffs' refusal to give an authority to the defendant to receive "the proceeds" of certain property in Europe after certain deductions. He then avers, and which averment was material, that after such deduction there would remain due to him a large sum of money. But why make the averment, if the plaintiffs became re­sponsible to pay the whole amount of the notes, the moment they refused this authority, whether the property was ever sold in Eu­rope or not? For the decision of the supreme court warrants the strange principle that the plaintiffs would have been liable for this e­normous sum, even if the property had been sunk or captured, the moment it left the wharf, in which case it is evident the de­fendant would have been injured by crossing the ocean in quest of a property which as to him no longer existed.

On a close examination of the special ver­dict, and the evidence stated in it, nothing appeared to enable the court to judge wheth­er the property was sunk at sea, burnt in port, or sold at the best market in Europe; they refused to admit evidence to enlighten them on this point; as appears hereafter. If the vessel had sunk the day after she left [Page 106] New-York, which may have been the case for aught that appears to the contrary, Mr. LeGuen's security was in his policy of insur­ance, which it was agreed should be made for that express purpose; but the decision of the court inverts this rule: their language is, that whether the property was sunk, burnt, or sold at a high price, in all events LeGuen is to be paid the whole amount by Governeur and Kemble, and they are to look to the purchasers and underwriters for their reim­bursement.

XVIII. Because, this being an action on the case, for a misconduct in the plaintiffs as factors, would be no bar to a new suit against them for money had and received, when the price of this property is recovered, if ever that be the case, from the purchasers. The defendant's council have taken care there­fore to let it appear by the verdict, that no evidence was given in the present action on the count for money had and received; thus after paying fifty thousand pounds to a man who has not been injured by their act a sin­gle cent, they may hereafter be compelled, in an action which is now pending against them by Mr. LeGuen in the supreme court, to refund to him the sum which may be ac­tually received by them from the purchasers. The sum recovered in this action must be as a compensation for the special damage sus­tained by the agent's default, which cannot deprive the principal of his right to receive the real amount of sales of his property, or the whole sum, if they are able to pay, on the notes of the purchasers; nay, nothing [Page 107] can prevent his compelling the agents to sur­render him those notes for prosecution either before or after the termination of this suit.

Such strange inconsistencies will ever be the consequence of a departure from plain and known rules.

XIX. To place in a more striking view the illegality of the judgment, as it respects the damages, let us again recur to the nature of the action. It is brought for an injury the defendant is presumed to have received by the refusal to grant him a certain authority. Hence if he had been injured at all, he ought to have recovered something as damages, o­ver and above and independent of the price of the property—because the price he was always entitled to, when it came into the hands of the plaintiffs, whether they had been guilty of a misconduct or not; so that if this judgment is to conclude the parties, and Gomez, Lopez and Rivera, were solvent, the plaintiffs pay no damages at all for their misconduct, and the defendant is compelled by their act to receive his money in this coun­try, without even the five per cent. premi­um, or any other equivalent for the disad­vantage which is imposed upon him by the plaintiffs. This shews both that the judg­ment is not conclusive between the parties, and that factors, by substituting themselves as paymasters, can always compel the principal to receive his money where they reside, with­out any compensation for their misconduct, although it be expressly agreed that he shall receive it elsewhere.

[Page 108] XX. The only cases in which a factor can be liable for the whole price of the goods, are, where he has sold contrary to his instruc­tions, or where he has received the whole property, or it has been lost by his default, such as releasing the debt to the purchasers, or neglecting to prosecute for it when due; but even here, he would be permitted to go into circumstances, to induce the jury to give other and less damages; at any rate the fac­tor would be liable for the real value of the goods only, not for any nominal or ideal va­lue at which they might have sold on credit, or by deception. In the present case, it is not pretended that any part of the property or its price has been lost by our default, but only that the defendant has been injured by not receiving the proceeds of it, after certain reservations, in Europe. Suppose these pro­ceeds, after the reservations mentioned, had only amounted to one hundred dollars, and it will be shewn presently that they did not amount even to that sum, will this honorable court say, that it is possible any man by re­fusing to give another a power to receive one hundred dollars in Europe could injure the latter to the amount of fifty thousand pounds, or substitute himself to the person who was to pay that sum? This would be saying in other words, that forty pounds in Europe, are worth fifty thousand in this country. This would be turning a special action on the case, into a penal one; it would be inflicting a fine by way of punishment on the defend­ant, instead of compensating the plaintiff for the real injury which he might have receiv­ed. The truth is, it matters not in what [Page 109] country money is to be paid, the party fail­ing, wherever he be sued, must pay the sum only with interest. Bills of exchange alone form an exception.

XXI. It was said on the trial, that the de­fault of the plaintiffs extended to the whole subject, and that therefore there could be no other criterion of damages than the value of the whole property. This is not just as an argument: in point of fact it is untrue, and directly against the record. It is not correct reasoning, because a default may often take place as to the whole subject, and yet the factor not be liable for the whole sum. If an insurance broker is directed to make insu­rance on property for one hundred thousand dollars, and neglects so to do, he is certainly responsible, but for what? If the vessel arriv­ed safe, he would be liable for nothing; if lost he would be liable only for the actual value of the property. Other cases will be men­tioned in the argument.

But it is untrue in point of fact, that the default here extended to the whole subject. The plaintiffs are sued for not giving the de­fendant an authority to receive in Europe the proceeds of the cargo, after keeping at their disposal a sum sufficient to pay and guarantee them against certain claims. To these proceeds then, after the reservation, and no farther, did the default extend.

Admitting however for a moment, that the agents in this case became liable for the whole amount of the subject. By the sub­ject [Page 110] must be meant that precise object, to which the authorization related. What was that? The authority demanded was "to re­ceive whatever sum shall remain of the pro­ceeds of the goods sold," after deducting certain sums. The plaintiffs refuse this au­thority. What then is the subject? Certain­ly the proceeds in Europe, and not the a­mount of the notes. Nevertheless the court did not require the defendant, and refused to permit the plaintiffs to prove what the a­mount of those proceeds were. To shew that this argument is correct, let us suppose that the authorization had been given; the de­fendant admits that in such case he could only have been entitled to receive by it in Europe the balance of the proceeds, after de­ducting certain sums. Withholding the au­thorization, was therefore in effect only with­holding that balance, what ever it was.— Hence it is clear, that to receive the balance of the proceeds in Europe, was the subject of the demand, and of the refusal. This was the subject of the controversy, and the subject for which the plaintiffs were liable, if for any thing. What the amount was, does not ap­pear. It will be remembered, the plaintiffs offered, but were not permitted to shew it; a tolerable estimate however may be formed.

Gomez, when at Hamburgh, expected to lose sixty per cent. All agree the markets were bad, and the speculation ruinous. De­duct sixty per cent from £48966, the price of the cotton and indigo, and there will re­main, rejecting fractions, only £18587.— The plaintiffs advances and liabilities on the [Page 111] 15th June, 1795, were £28718 17 3. Thus then the proceeds, if any there were, fell short of what the defendant was willing to leave at our disposal, the sum of £10131 17 3. Where then were the monies which the defendant was to have received? How is the plaintiffs' default as to the whole sub­ject made out, when it applied, if at all, to an object which had no existence.

XXII. It was also contended on the trial, that the price of the property being fixed and ascertained, every other measure of da­mage was uncertain, and liable to difficulty. But are not damages uncertain in their ve­ry nature? Why are a jury summoned, but to render them certain? Is not this the case in actions of covenant, trover, detinue, slan­der, assault and battery, and in every special action on the case? If in all these, damages are uncertain, why should a certain measure, never before heard of, be applied to this case? Even if the factors had sold of their own head, the price of the property would not form a certain measure of damage. It might not be worth as much as it sold for, and other cir­cumstances of mitigation would be listened to. How comes it, that the defendant's counsel have not stated in his declaration, that by reason of their default, the plaintiffs ‘became liable and assumed to pay to the defendant the amount of the notes’? The truth is, such an extravagant idea never oc­curred to them. With all their talents, they did not dare to hazard a declaration in such form; and yet such a declaration would have been good, or this judgment must be bad.

[Page 112] Notwithstanding all this pretended uncer­tainty, which is always more or less the case, never did an easier or more familiar measure for ascertaining damages present itself than in this case. The plaintiffs refuse to give the defendant an order to receive the pro­ceeds of certain property in Europe. Where then lays the difficulty of ascertaining their amount? They either exist or do not; if they do not, there could be no injury; if they did, their amount might easily be known; the plaintiffs offered to ascertain it. This sum, with interest, after large deductions, should have been the utmost extent of the recovery.

XXIII. From the reasoning in the last ar­ticle, it also appears, that the supreme court did wrong in rejecting the testimony offered by the plaintiffs, to shew there was no special damage. In actions on the case, every cir­cumstance which can assist the jury in form­ing an estimate of the extent and nature of the injury, ought to be admitted. The ac­tion is with propriety termed a special action on the case; that is, the plaintiff is to recover according to all the circumstances of his case. If the wrong he complains of has been at­tended with any injury, he recovers accord­ingly; if not he recovers nothing, or only nominal damages. Thus in actions on the case, for escapes against sheriffs, and for mis­conduct in attornies, they are not bound, the sheriffs, to pay the whole sum due to the plaintiff in the original suit, nor the attorney, the whole sum due to his client. This will be exemplified by several very strong cases. The court on such occations, after the default [Page 113] is established, permit the defendant to prove every circumstance which may tend to shew either that the party has not been injured at all, or to an inconsiderable degree. Yet all this was denied to the plaintiffs here: They are able, if permitted, and would have prov­ed, if their evidence had not been over-rul­ed, most conclusively, that their refusal to give the power in question, had not only worked no injury to Mr. LeGuen but had proved beneficial to him.

XXIV. Because by rejecting the testimo­ny, which is made the ground of the bill of exception, the court precluded the plaintiffs as factors, from every defence, which even the purchasers themselves might have avail­ed themselves of. A man is not always held to pay the price agreed upon: Thus the pur­chasers may, and no doubt will, in the action brought against them on their notes, endea­vor to prove, in avoidance of the contract al­together, that they were grossly deceived and imposed upon in the purchase of this cotton and indigo; that they were warranted of qualities very different from the truth. If they make out this proof, nothing is clearer than that they will be relieved against the payment of these notes; or that they will have to pay only the real value of the pro­perty. How iniquitous then may be the re­sult? Gomez, Lopez and Rivera may have a verdict against the factors, on the ground of fraud or deception, and yet the latter may be compelled to pay the whole a­mount. If in both cases there be special [Page 114] verdicts, it is to be hoped they will be pub­lished together; they will reflect singular credit on the judicial annals of this country. If any fraud was practised, as is contended by the purchasers, it was by the defendant himself, who negociated the sale; yet as the notes are in the names of the agents, the re­lief will be against them: Thus may inno­cent factors be punished for the fraud of their principal.

The case of a horse which was sold for a barley corn, a nail doubling every nail, is well known; the animal at that rate came to 500 quarters of barley; the jury howev­er gave only eight pounds, which was his real value. Yet if the sale had been made by the intervention of a factor, and he com­mits a single mistake or default, he must pay the contract price, however exorbitant or unconscionable that may be. Thus if Mr. LeGuen had sold a single horse, for as much as he was to have had for the cotton and in­digo, no one can doubt the purchaser would have been relieved against such a hard bar­gain. Yet if the proceeds of the horse was to be paid in Europe, and his agent should refuse him an order to receive these proceeds, which in all probability would not exceed one hundred guineas, nothing could exempt him, if this judgment be affirmed, from pay­ing to his principal the last farthing of the contract price. For aught that appears, the purchase of the cotton and indigo was almost as hard a bargain. To lose £30,000, as may fairly be inferred from the verdict, the purchasers did, was no trifle.

[Page 115] XXV. There is no evidence, nor is the fact found, that ‘after certain deductions and reservations, there would remain due to the defendant, for the residue of the amount of the said notes a large sum of money,’ which is another material aver­ment in his declaration, and ought to have been proved. It is true, it is stated there would be due a residue on the amount of the notes; but this, like several other allegations in the declaration, is inaccurate. The pur­chasers being only bound, as appears from the declaration and contract, to pay the notes as far as the proceeds extended, the defen­dant could not demand, nor they give a pow­er to receive any monies beyond the amount of these proceeds. It should therefore have been stated, that ‘there would remain due to the defendant in Europe, for the residue of the proceeds of the said cotton and in­digo, a large sum, &c.’ of this we say there was no proof.

XXVI. The consideration stated in every declaration ought to be some certain act; matter or thing by which the defendant may be benefited, or the plaintiff incur some trou­ble or inconvenience, that is, either a dam­age to the plaintiff, or an advantage to the defendant. The declaration ought also to aver, that the plaintiff has on his part, ful­filled the terms on which the promise was made, or that he has offered to fulfil them, and shewn that readiness and willingness to do it which the law requires. To apply this law; the consideration stated in the present declaration, is, that Gouverneur and Kem­ble [Page 116] were to be allowed ‘a commission of two and an half per cent. upon the amount of the sales, and such other commission as the course of their agency and the usage of trade might entitle them to.’ But in no part of the declaration is it averred, that this commission was paid or tendered unto them, although it is evident from the decla­ration itself, that this payment was consider­ed by the defendant, as a condition prece­dent to his receiving the authority in ques­tion; nor is there any proof to supply the want of this essential averment.

XXVII. Another very material and es­sential part of the defendant's declaration is not only without proof, but the testimony and finding of the jury completely and en­tirely disprove it. The declaration states, that the defendant requested us ‘to elect to receive the amount of the notes, or, at our option, so much as would be due to him, after deducting and reserving thereout cer­tain sums at Havre, or at any other port in Europe, where the ship should discharge, out of the proceeds of the property; and af­ter such deduction and reservation made, to give to him power and authority to receive from the purchasers, the residue of the said notes out of the proceeds.’ It might be inferred from this, that no authority to re­ceive the residue was required until after this election was made, and Gomez, Lopez and Rivera had actually paid to us, or to our a­gent, the monies which were to be thus de­ducted and reserved. The correspondence between the parties, all the proposals of Mr. [Page 117] LeGuen, the finding of the jury, and the sev­eral times of making his demands of the au­thority in question, evidently shew, that the reservation to be made was not out of the proceeds when actually paid to our agent, but that this sum, which by the bye was nev­er ascertained between the parties, was to be left in the hands of the purchasers, subject to our order.

Mr. LeGuen's first request is to ‘have an authorization to receive in France, the a­mount of the engagements of the purcha­sers,’ without any reservation whatever to the plaintiffs. He next demands an au­thenticated copy of the contract, with an authority to receive, after payment of the freight, one hundred thousand dollars. It would have been fortunate for all parties, if the property had produced only half of this sum. He lastly demands an authenticated copy of the contract, with a complete authorization to receive whatever sum shall remain of the proceeds of the goods (not of the amount of the notes, as artfully stated in the declaration, and from which the proofs so essentially va­ry) sold to Gomez, Lopez and Rivera, after deducting and reserving at our disposal cer­tain sums for our indemnification; nor is there any proof in the whole verdict, that he ever requested us to make the election which he stated in his declaration; although it a­bundantly appears, that the election to re­ceive the proceeds in Europe was made by us, and, for any thing that is found to the contrary, with effect.

[Page 118] Again—The time of making the request explains the ideas of Mr. LeGuen. The last demand was only fifteen days after the de­parture of the White Fox. How could we make the election in so short a time, before it was possible it could be known where the property would be sold? Were we to send to every port of Europe? It is plain then, that instead of our making an election pursuant to the right reserved to us, the defendant want­ed an authority and the contract, to pursue the purchasers and get the whole of the pro­perty from them. This appears farther, from the pains he has taken to establish on record the customs of Normandy. It is difficult to see any connection between these customs and a power to receive the proceeds. It was the property he was in pursuit of, and not a bal­ance of the proceeds. There is a material variance too between his declaration and his letter of the 15th June. In the former he says, he asked for an authority to receive im­mediately from Gomez, Lopez and Rivera; but in his letter he artfully demands a power to receive at the port of discharge, without say­ing from whom; this variance we deem essen­tial and fatal. The court below were inconsist­ent in the admission of testimony. The defend­ant was permitted to prove the customs of Normandy, with a view no doubt of inducing the jury to believe he had been injured by not receiving the authority demanded, and yet we were not permitted to shew any thing in mitigation. If the rule be just, that we ipso facto, the very instant the default if any took place, put ourselves into the shoes of the purchasers, without the possibility of protect­ing [Page 119] ourselves against such an enormous pen­alty, and that the price of the article was the only rule of damage, the court should have excluded this testimony altogether.

The court rejected the testimony offered on our part, that no damage had been sus­tained, on the ground, that the law in this case having fixed the amount of the dama­ges to a precise definite sum, it could be nei­ther more nor less; it was therefore improp­er to receive evidence to shew that a less, or any particular damage was sustained. They admitted this evidence on the part of the plaintiff, to shew that he had sustained par­ticular damage, and refused it to the defend­ants. The court have therefore certainly been in an error in admitting one, or refusing the other.

It is true the custom of Normandy makes considerably in our favor, as it discovers the defendant's true object, and the injury he contemplated doing to us, by taking the whole property under the pretence of a lien, into his own hands. We have a right how­ever to complain of its admission, as being directly contrary to the rule which the court inforced with respect to us. If circumstan­ces of aggravation were admitted on the one side, surely matters in mitigation ought to have been received on the other.

XXVIII. That the rule of damage was er­roneous may be further illustrated from ac­tions which are brought on contracts con­taining penalties. If it be an action of debt [Page 120] for the penalty, it might be said the party has ascertained the sum he is to pay for the breach of his contract, and that every other rule is uncertain. Yet every one knows that the actual damage sustained is all the plain­tiff can eventually recover, and that this must be ascertained by a jury. Let us ad­mit as strong a case as can be put for the de­fendant—Suppose Gouverneur and Kemble immediately after making the sale to Gomez, Lopez and Rivera, had covenanted under the penalty of fifty thousand pounds to give him, in the course of a week, authority to receive the proceeds in Europe, and that they had no demand whatever against him. They however refuse, without assigning any reason whatever, to give such authority. In an ac­tion of debt for the penalty, or in an action of covenant, the penalty would be disregard­ed and the rule of damage would be the in­jury actually sustained—that is the amount of the proceeds with interest. Shall they then be in a worse situation because they did not comply with an implied promise, and refus­ed to give an authority in a case where, to say the least, it was doubtful whether the de­fendant was entitled to receive one, and where they assigned at least a plausible rea­son for their refusal, and could certainly not have complied, without very eminent hazard to themselves?

XXIX. The finding of the jury, as it res­pects the damages, is illegal, and therefore the judgment ought to be reversed. Instead of assessing them as customary, they refer it to the court whether the contract price shall [Page 121] be the rule. If the court be of that opinion, then they find such a sum. While attaints were in force, such a verdict would not have been permitted, as the party must have been deprived of his remedy against them for ex­cessive damages—for no attaint would lie on a verdict, where the quantum of damage, as well as the law, were referred to the court. It is a dangerous innovation on established precedents—assessing damages is emphatical­ly the duty of jurors. Referring it in this way to the court, if not a violation of trust, is destroying those barriers between the pro­vinces of courts and juries, in the preserva­tion of which, separate and distinct, consists the great excellence of this mode of trial.— This is at once surrendering their prerogatives in which the party has an interest not to be defeated by pusillanimity, or a mistaken de­ference for the opinion of others. They are to enquire what injury the party has sustain­ed, not to leave the quantum to be determin­ed by the court. If jurors are thus permit­ted to evade adjusting the very object for which they are convened, their attendance may as well be dispensed with altogether, as an useless expence, and questions of damages as well as of law be at once submitted to the court. If this honorable court shall think the defendant entitled to recover, but that the jury have neglected, from a diffidence in their own judgment, to exercise that discre­tion respecting the damages, with which they are peculiarly intrusted, they may, and no doubt will, order a venire facias de novo in or­der to admit further light, and to have the [Page 122] question of damage definitively settled by the proper tribunal. It is much however in fa­vor of the plaintiffs that the jury have ex­pressed no opinion against them either as to their liability, or to its extent. It would have been impossible to induce a jury of mer­chants to subscribe to so dangerous a doctrine. It is a matter of public notoriety, and ought to be mentioned, that the first jury who were selected, from the most respectable merchants in the community, determined, that Messrs. Gouverneur and Kemble had incurred no responsibility whatever.

Lastly. The judgment ought to be re­versed, because it is an attempt to punish the plaintiffs for the insolvency of the purcha­sers, without a particle of proof that they have in any degree contributed to such in­solvency. Although their failure is not sta­ted on the record, it may fairly be inferred from the defendant's conduct. Why look to the plaintiffs for the contract price of the cotton and indigo, and that in so questionable a form of action, if the purchasers were able and liable to pay? An action on their notes would be more certain and expeditious. The buyers must then be either unable to pay, or have good reasons for resisting payment. If their bankruptcy cannot be attributed to the plaintiffs, why should they become their sub­stitutes? If the buyers have a defence, we ought in no event to be answerable for any part. The defendant's motive to this suit also appears from the time of its being bro't. If he really intended to recover damages for the actual injury sustained by our default, [Page 123] why not immediately abandon to us the whole property, and commence the action without delay? Instead of this he waits more than a year to discover how the speculation would terminate. If the issue had been pros­perous, and the buyers had stood their ground, no recourse would have been had to us; and yet our liability and its extent were precise­ly the same, whether the purchasers were a­ble to pay or not. It was a liability for the "disastrous consequences," as the defendant himself well expresses it, occasioned by our default, not a liability to pay the amount of the notes. This preposterous notion never occurred to him. Let him point out a single disastrous consequence occasioned by us, and we will compensate him an hundred sold.

After all that will or can be said on the subject, into what narrow limits may its real merits be comprised? It is a dispute between a principal and his factors—The former com­plains of not being furnished with a power to receive the proceeds of certain property in Europe, or in other words certain monies.— The factors say: ‘We have a lien on all your papers and on the price of your goods for our advances and responsibilities. This lien the law gave us the moment the sale was made—as they are very considerable we only ask you to secure us in this coun­try, and you shall have every thing you want.’ This lien is not a chimera of the factors own brain. The principal himself admits it, but insists, that as the property was to be paid for in Europe, as far as the proceeds extended, the factors were bound to [Page 124] take payment there also, and to look to a por­tion of these proceeds, in the hands of the purchasers, for their indemnification. In sup­port of this perfectly novel idea of a qualified lien, the court are apprized that not a single authority from any book will be produced. The principal's counsel will rely upon nice and subtle distinctions, which splendid talents will readily suggest, and upon a train of rea­soning so refined as to require faculties, e­qual to their own, to be able fully to com­prehend. The factors, in opposition to such a limited lien, assert, ‘That it is of no im­portance to them, upon what terms the principal sold his property, or where it was to be paid for. That the rights of factors are clearly defined by law—that they nev­er before heard, that some factors had one kind of lien—and others, a different one, or that the liens of factors vary according to the contract between them and the pur­chasers—but granting, say they, that our lien was thus restricted, and that we were bound to go to Europe for payment, we in­sist we had a right to keep the whole pro­perty under our controul, until actual satis­faction in that country, and not to look on­ly to a remnant of it, which might be wast­ed by the purchasers, or wrested from them by the principal himself—If neither hap­pened, and the buyers by misfortunes, be­come insolvent, our security will be much impaired, as in such case our dividend on their estate would not pay our demand.’

On the question of damages, the contro­versy is, if possible, yet more simple. The [Page 125] principal brings his action for damages, or a compensation for an actual injury, which he alledges he has sustained by a breach of duty in his factors. The factors say, ‘if we have been guilty of a breach of duty, it has been attended with no loss or damage what­ever to our employer, and that therefore he is not entitled to any recompence or e­quivalent whatever.’ The principal, know­ing that he had sustained no loss, and of course that he could not prove any, abandons the attempt (for his counsel certainly had in view the necessity of proving special dam­age, when they drew the declaration) and insists upon our paying the whole sum which the purchasers had contracted to give. The factors, to this extravagant pretension, op­pose this plain answer. ‘If, say they, we er­red in not giving you an authority to re­ceive these proceeds, surely their amount with interest, can be all which you are en­titled to from us. It matters not where your money was to be paid; if we were engaged by bond to pay you a certain sum on the royal exchange of London, and we fail, you can only, if you sue us in Amer­ica, make us pay the same amount with interest here. Why then did you not shew the amount of these proceeds? this would have been easy. One of the purchasers, and the very person who sold the proper­ty in Europe, was attending the trial. Nay, why did you not permit us to shew their amount? What possible reason can be assigned for your solicitude to keep out of view these proceeds, other than that they were so inconsiderable, that you wish­ed [Page 126] the court and jury to be kept in igno­rance of them? For aught that appears on record, the property never was sold in Europe; if so, how are you injured? Why should we take the place of the buyers? Did we guarantee their responsibility? Did you not sell the property to them yourselves? If they have failed, who occa­sioned their bankruptcy? Was it not bro't upon them by the extravagant price they were to give for these articles? If they have been ruined by no agency on our part, why are we to make good their en­gagements? Shew us that any loss whatev­er has been occasioned by us, and you shall be compensated to the utmost far­thing.’ Is not this the language of com­mon sense?—Is there any sophistry in it?— Does it require eminent abilities or any in­genuity to illustrate or to comprehend it?— Does it not accord with every case that has been cited on the subject of damages, and does it not consist with reason and justice? Is not the adverse doctrine pregnant with ruin to every agent, and mischievous in the extreme?

To conclude. The court perceive they are to determine on a case of no common magni­tude. They must by this time be satisfied, that it is not without reason the plaintiffs consider themselves aggrieved, by the judg­ment from which they have appealed. In this honorable court they have no doubt the cause [...] be examined [...] every possible [...], and determine [...] principles of law and justice. The law ought to be very clear indeed [Page 127] with the defendant, to induce an affirmance of this judgment. If it be a case which admits of a single doubt, the judgment should be re­versed, because the defendant will suffer no injury by it, inasmuch as he will remain in statu quo, without any of his remedies against the purchasers being impaired. From them he will receive what he ought to have; whereas an injury, extensive and irreparable, will be done to the plaintiffs, in case of af­firmance. They will have to pay an immense sum which has never come to their hands, and for which they have a remedy against no one. But if the law be clearly against them, they must submit. They appeal, however, with great confidence, to every professional gentleman present, whether they have ad­vanced any thing not warranted by the laws of their country. They appeal, with equal boldness, to every member who may have been engaged in commercial pursuits, whe­ther their conduct has not been strictly mer­cantile and consonant to the known and e­stablished customs of trade. They appeal to every man of candor, probity and feeling, whether, if they have erred, they deserve to have this heavy fine inflicted on them? They cannot yet believe they are to be consigned to poverty and ruin; that an ample patrimo­ny, the produce of many years of honest in­dustry, is to pass from them to the defendant, to compensate him for an ideal injury; that they are to be punished to the extent of an immense fortune, to make good a loss which the defendant has never sustained. They cannot persuade themselves that any mem­ber will think such a sentence legal or con­scientious. [Page 128] In fine, they look with trust and confidence to the virtue and understanding of this high tribunal, for a decision in their favor, and for that redress to which they humbly think themselves entitled by the laws of their country, and the real and substantial merits of their case.

Case on the part of the defendant.Case on the part of the de­fendant in er­ror. The counsel for Louis LeGuen will urge and main­tain—

1. That every contract made by a factor for the sale of goods is for the benefit of his principal, and forms a contract between the principal and the purchaser; and that every contract made by a factor for his own benefit, with the property of the principal, is a vio­lation of his duty, and a fraud against the principal.

2. That every factor is bound generally to obey the orders of his principal, and particu­larly to use his endeavors to carry into effect any contract by him made for the benefit of his principal.

3. That, therefore, if a contract should stip­ulate an advantage, to depend on an election to be made, that election being itself a privi­lege or benefit, is to be exercised for the prin­cipal, and is subject to his controul and direc­tion.

4. That in the present case, the right of election to receive the purchase money in Eu­rope, [Page 129] was a right which G. and K. ought to have exercised for the benefit of their prin­cipal, according to his direction and request, especially as he was thereby to receive a pre­mium or advance of price of five per cent. e­qual to 6,12032/100 dollars.

5. That this position and inference are the more obvious in the present case—Because, the factors could neither have stipulated nor exercised such a right without the consent of their principal—Because, the contract was made by the intervention and express direction of LeGuen—Because, it was his avowed ob­ject to transfer his property to France, of which country he was a native and citizen—Because, at Havre-de-Grace, to which port the ship was bound, he would have had a lien on the pro­perty, which would have enabled him to have taken precautions important to his security; and, because it is absurd to suppose that all these advantages could be defeated, at the mere pleasure of the factors, and in defiance of the direction of the principal.

6. That the acknowledged lien, which a a factor has on the property entrusted to him, for his advances and responsibilities, can form no objection to the demand of LeGuen in the present case—Because,

That lien, like every other right, is liable to be modified or abolished, by the agreement of the parties, either express or implied—

That it is not in its nature local, but de­pends wholly on the place of payment—

[Page 130] That G. and K. by becoming parties to a contract for the benefit of LeGuen, contain­ing a right of election to receive in foreign parts the monies to arise from the proceeds, virtually agreed to give effect to this right, and to exercise his lien at the place of pay­ment—

That if payment had been positively sti­pulated at Havre or Hamburgh, no doubt could have arisen but that, after reserving enough to cover their advances and respon­sibilities, they would have been obliged to pay the overplus there to LeGuen; and in such case, to have contended that they would have had a right to bring back the whole a­mount of the sales to New-York at his expence and risk, to cover themselves for a sum which might not amount to one thousandth part of it, would be an absurdity too glaring to be endured—that a right of election to receive in a foreign port, brings the matter to the same issue—when that election was made, the Foreign port became the place of payment, and there only could the lien of the factors be exercised.

That it is an invariable maxim in law, that he who agrees to an end agrees to the MEANS. G. and K. might have refused to enter into the contract on such terms, but having assented, having executed the contract, they were bound not to impede the perform­ance of it.

That G. and K. could have given the au­thority required of them by LeGuen, in so [Page 131] special a form and with such co-operation of an agent named by themselves, as would have secured to them the full benefit of their lien,

And lastly, it will be demonstrated that upon the construction contended for by G. and K. they and their agents may keep the whole property in their hands forever.

With respect to the measure and amount of damages, for the respondent, it will be con­tended,

1. That the rules of law prescribe the mea­sure of damages in all cases in which they are not merely contingent—Thus in promissory notes and other liquidated demands, the le­gal interest—on foreign bills 20 per cent— on inland bills 5 per cent; without any enquiry into the special damage which the party may have actually sustained. Thus in actions of trover, however slight the damage, the party is compelled to pay the whole value of the sub­ject of which he hath made an improper use. Thus, finally, in every case of a factor or trustee, the damages are invariably the whole value of the property which may have been affected by his neglect or misconduct; as in a case of acknowledged authority, if a factor be in­structed to sell at a credit of thirty days, and he sell at a credit of thirty-one, he is instant­ly liable for the value of the whole, although the purchaser prove insolvent within the thir­ty days; because a violation of his duty re­lating to the whole. If he had sold a part on­ly, he would in like manner have been lia­ble for that part. So if a trustee be directed [Page 132] to put out money on real property, and lend it on personal security, however competent, be is instantly answerable personally for the whole. No enquiry is made or would be al­lowed as to the actual or probable damage sustained; the factor and the trustee are deemed to have taken the responsibility up­on themselves.

2. That the application of this obvious principle is peculiarly necessary in the pre­sent case, because of the impossibility of as­certaining or calculating the events which may have affected the views and interest of the parties; that if LeGuen should prove on the one part that he could have made half a million of dollars by the receipt of his money in Havre, and by his presence in aiding the sales, could have also ensured a profit to Go­mez and Co. and G. and K. on the other part should prove, that they had reason to believe that a better market could be had at Hamburgh—a court ought to pronounce, as has been done by the supreme court, that all such proof would be irrelevant, and could tend only to introduce confusion and uncer­tainty; the only object of enquiry being, have G. and K. neglected or disobeyed the orders of their principal? If so, does their neglect or misconduct relate to the whole or a part only of the property; if to the whole, they are liable for the whole—if to a part, for that part only. No other evidence was admissible to extinguish or mitigate the dam­ages, but that the price in the sale was fraud­ulent—that the property had been lost be­fore the default—that the principal had re­leased [Page 133] the whole or part, or had been wholly or partially compensated; neither of which points was in any sort attempted to be proved.

3. That a default, which gives a right of action, necessarily carries with it the rule of compensation or damages, as an incident, and which cannot therefore in any degree depend on future events and contingencies.

4. That as the default in the present in­stance related to the whole property, and de­feated the essential part of the sale, G. and K. thereby substituted themselves to the pur­chasers, and took upon themselves the risk of future contingencies: That the amount for which the property sold is the proper and on­ly standard of value and of damages; and that on any other principle there could be no rule of damage in the present case; the e­vents which took place subsequently to the default offering only a field for vague and unlimited conjecture.

5. That in the cases mentioned under the first head, and in many others, the law fixes the rule of damages, which will regulate and control the verdict of a jury—That when the parties agree the value, this value is the rule—That where an agent, by his assump­tion or default puts himself in the place of another, with whom he has settled the value, the value so settled shall govern as against him.

6. That consequently the amount for which the goods were sold to Gomez, Lopez and Ri­vera, [Page 134] together with five per cent. for receiv­ing in Europe, is the principal sum for which G. and K. became liable, for their default.

The foregoing general propositions will be illustrated by arguments and analogies, which it is hoped will fully evince their soundness, and the propriety of the judgment of the su­preme court.

The objections in point of form, with which G. and K. may attempt to embarrass the cause, would not be worthy of notice in this state of the business, even if they could, be anticipa­ted. They will, without difficulty, be dispo­sed of in the couse of the argument.

Equal to 153,010 dollars 18 cents.

‘Calculated agreeably to the opinion and directions of the Supreme Court.’

• [Page 135]
  For Affirming,
  • Mr. Bronck,
  • Mr. Clark,
  • Mr. Coe,
  • Mr. Frey,
  • Mr. Haight,
  • Mr. Hatfieid,
  • Mr. Jones,
  • Mr. L'Hommedieu,
  • Mr. Mathews,
  • Mr. T. Morris,
  • Mr. Nicol,
  • Mr. Phelps,
  • Mr. Sands,
  • Mr. Schenck,
  • Mr. Strong,
  • Mr. Tappen,
  • Mr. Ten Eyck,
  • Mr. Thompson,
  • Mr. Tillotson,
  • Mr. Vail,
  • Mr. Watson,
  • Mr. Cantine,
  • Mr. Gold,
  • Mr. Gordon,
  • Mr. Hitchcock,
  • Mr. Myers,
  • Mr. Russell,
  • Mr. Van Schoonhoven.
• For Reversing.
  • Mr. Gansevoort,
  • Mr. Graham,
  • Mr. Spencer,
  • Mr. Silvester,
  • Mr. Savage.

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