Barron v. Blanchard , 2 Mart. (N.S.) 662 ( 1824 )

Mathews, J.

delivered the opinion of the court. This is a suit instituted by the plaintiffs to recover from the defendant, the proportion of the proceeds of a certain commercial adventure, which was made on the joint account of them and said defendant, and in which the latter seems to have been the acting partner.

In the investigation of the cause in the court below, no difficulty occurred in settling the respective claims of the parties,. except in relation to two items in the accounts, viz: The amount of draw-back, on the goods shipped, which was lost by neglecting to pursue some formalities required by the custom-house regulations; and a note of Dutillet & Sagory, the amount of which is alleged to have been lost, by their insolvency, &c.

The loss on account of draw-back was adjudged against the plaintiffs, and the correctness of the judgment in relation thereto is not questioned.

The defendant in the district court, who is here appellant, complains of the judgment of that court, in as much as it condemns him to the alleged loss by D. & S. It is therefore unnecessary to examine the cause farther than relates to this question, which arises out of the sale of Indigo, to them, previous to their failure; being a part of the produce of the commercial adventure, as above stated; and in which the plaintiffs and defendants, had a common interest.

The evidence of the case shews that the indigo was sold to D. & S. by the agency of the appellant, (and with the consent of the appellees, as appears from the testimony of one witness,) at a credit of 2 and 4 months, for the price of which the vendee's notes were taken without endorsement, payable at those terms. It does not appear with certainty, to whom they were made payable; but the case has been argued as if they were given to the defendant, in his own name; and this from the whole testimony, we deem may be safely assumed as true. The first note was regularly paid. Previous to the time, at which the second became due, the promissors stopped payment; but were indulged by a concordat with their creditors to retain their property, and a respite of four years was granted to them.

There is no evidence that either the plaintiffs or the defendant assented to that arrangement, as creditors of said D. & S. It does not any where appear that the plaintiffs were even considered to be their creditors. The defendant seems to have been placed on that bilan, as a creditor for about $300, but his name does not appear amongst those who signed the concordat. At the time of the sale of the indigo, nearly the whole amount of the price, which would be coming to the appellees, was paid in the notes of the defendant to Barron & Brumtly, in anticipation of any final adjustment of the contract with D. & S. It is East'n not shewn that he ever notified the plaintiffs that he would look to them for a reimbursement of the sum advanced; at any time, either before or after the failure of the purchasers of the indigo. He neither warned them of the necessity of taking any steps against said persons, as being the common debtors, nor does, he appear to have pursued any himself. It is agreed by the parties, that the property finally ceded by the insolvents, will pay nothing to the chirographary creditors.

Allowing that the alleged payment by the appellant to the appellees, of their share of the price of the indigo, was not, in consequence of an absolute contract, by which they transferred, as a consideration, their interest in the claim on D. & S.; it remains to be ascertained whether he has not been guilty of such negligence, in not giving to them, information of the dangerous situation of the debt, and in not having pursued any measures calculated to secure its payment, as to subject himself to the whole loss. The judgment of the district court seems to be based principally on the ground of the defendant's liability to suffer this loss, as a consequence of his negligence; and in this respect we cannot on an examination of all the evidence, say that it is erroneous. If we add to this, the circumstance of the appellant appearing a creditor of D. & S. only for $3OO, and that the note, the amount of which is said to have been lost by their failure, is not produced or accounted for; no good reason appears, on which to reverse the judgment of the court below. The result, viz: a failure to recover any thing from D. & S. might possibly have been the same under any notification to the plaintiffs, or on the most strict and vigilant pursuit, for the recovery of that note, by the defendant, in his own name; but we are of opinion that this event, ought not to screen him from the effects of his apparent want of ordinary diligence.

Cuvillier for the plaintiffs, Derbigny for the defendant.

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