Hernandez v. Babcock's Executors , 13 La. 587 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

In Havana, on the 6th of February, 1834, the deceased, Henry Babcock, gave an order to the plaintiffs, merchants in that place, to make a shipment of certain articles of colonial produce, to Roman Watson & Co., of New-York, and to draw on that firm for their reimbursement.

The shipment was made, but the plaintiffs, from the state of things in New-York, entertaining some doubts as to the solvency of the consignees, had the bills of lading made out to the order of the shippers, and sent them to Mr. Russell, a merchant of New-York, with instructions not to deliver them to the consignees, unless they would accept the drafts which had been drawn on the shipment, and unless he, Russell, “ should consider the house perfectly good, to pay said drafts at maturity.”

Roman Watson & Co., had previously failed, and Russell having communicated to them his instructions, and notified his intention to abide by them, no security was offered to him, except the guarantee of the house of Roman Watson & Go. Russell sold the shipment and paid the bills which had been protested for non-payment and non-acceptance. The loss on the shipment and the incidental charges, form the subject of the present suit.

Where a merchant ordered a shipment of articles in Havana, to his house in New-York, and was privy to selecting and making up the invoices, he cannot afterwards object to the quantity of any of the articles composing them So, it the shipper furnished false invoices to the consignee, for part ot the cargo with the privity of the buyer, when the true ones were sent with the bills of lading, it cannot affect the validity of the contract between the shipper and buyer. But where a contract grows out of, and is connected with an illegal or immoral act, or is in part only connected with the illegal consideration, and growing immediately put of it, though it be a new contract, it is equally tainted, and a court of justice will not lend its aid to enforce it. 11 Wheaton, 258.

The evidence shows that the deceased was a partner in the house of the consignees in New-York, and from his presence and agency in relation to the business in the HaVana, preparing the invoices, and his advising the consignees of the shipment, we think his representatives are precluded from making any objection as to the quantity of any of the articles composing it.

It is objected by the counsel for the defendants, that the plaintiffs ordered Russell to sell the shipment on their account. This is a matter exclusively between the plaintiffs and their agent. They were not bound to part with the property, after the failure of the consignees, unless the bills were provided for, and the only interest the plaintiffs had in the shipment, was that it should be fairly sold according to the custom of merchants, and on this ground, no objection has been made to the mode in which Mr. Russell closed the transaction.

It appears that the plaintiffs had forwarded to the consignees, a false invoice for a portion of the sweetmeats which formed part of the shipment, which were to be used or not, as they should think proper. The genuine invoices were sent with the bills of lading, and there is nothing in this naked fact to which the deceased was not privy, and which was entirely without consequence, which can affect the validity of the contract originally made between the parties.

The principles on which contracts are affected by an illegal or immoral object, do not touch this case. See Toler vs. Armstrong, 11 Wheaton, 258.

We can find nothing in the conduct of the plaintiffs throughout the transaction, which would exonerate the estate of the deceased from his obligation to make good this loss. The shipment was made on his credit; the plaintiffs looked to him as the responsible person, and all their acts appear to have been dictated by a regard to his interests.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.