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the agreement had been made; or whether putting in the word “ company a mistake of which he could avail himself in carrying out the contract. The testimony of the plaintiff, to which there is no contradiction, shows that whatever may have been the representations of Mr. Gillespie, or however it was understood by Tilden, in point of fact, the plaintiff had no partner, and the agreement was only for his own benefit, and not that of any one else. And if so, although the defendant may not be bound by it if there was any misrepresentation, still, if it is a fact that Davenport had no partner, he is, therefore, a proper party to stand here in court and assert his right to the performance of this agreement. But if the defendants contracted on the credit of a firm, and on the representations of plaintiff's agent that he or other persons were partners of Davenport, the defendants were not bound to deliver the property on the credit of one person only. And I do not understand that defendant ever refused to deliver the gum on a demand made in the name of Davenport & Co., or that the plaintiff ever claimed it on the credit of Davenport & Co. But if your reflections lead you to the conclusion that from the position of Davenport's agent, Gillespie, and the knowledge which Tilden had on the subject, the agreement was intended and understood by the parties, to be between the defendants and plaintiff alone, then it is my duty to say that the defendants, on effecting a purchase of the cargo, were bound to sell not less than 30,000 lbs. of it to the plaintiff, on the same terms as they paid for it; and also, that the plaintiff was entitled to an equal proportion of it in respect to quality, and on the same terms of sale as the defendants made with Grinnell, Minturn & Co., from whom they purchased it. And the subsequent agreement between Tilden and Grinnell, that Tilden might pay eash and receive a discount, could not affect the plaintiff's right. It was said that Tilden could make an after arrangement, by which he was to pay cash, and then say to Davenport that he should also pay cash; but, according to the terms of the contract, if the sale was made at six months' credit on the purchaser's own note, then the plaintiff was entitled to receive his portion of the cargo from Tilden, at six months' credit on his own note. Because it was the duty of the seller, before he made the agreement, to inquire whether Davenport was entitled to have it on his own note. If you come to the conclusion that Tilden was entitled to have the notes of Davenport & Co., and that Davenport did not comply with the contraet by offering such notes, then you must find' for the defendants. If you find for the plaintiff
, you will give him the difference between the price at which the defendants agreed to sell
, and the market value of gum of like quality and quantity at the time it was deliverable according to the contract.
The jury found a verdict for the plaintiff—damages $184.
SUIT FOR COLLISION.
United States District Court, May 22d, 1852. Before Judge Judson. Charles E. Kelsey and another, vs. the schooner William Kallahan.
The schooner Arehelaus, Charles E. Kelsey master, on the night of the 13th of October, 1851, that being a bright and clear moonlight night, was beating her way down the North River, W. S. W., flood tide, close hauled on her starboard tack, five points on the wind, full and by. At the same time the schooner W. Kallahan, P. M'Dermot master, was laying her course up the river, with the wind free, heading rather towards the New Jersey shore. The two vessels were seen by each at the distance of about half a mile. The collision took place west of the middle of the river, at a point about two-thirds over from the east shore. The Archelaus was struck on her lee bow, between her stem and fore rigging, going down immediately, and proved a total loss.
Two questions have arisen :- 1st. Has the court jurisdiction of the subject matter of the controversy? On this point the facts are admitted, and out of this admission the question is raised. The collision occurred on the North River, within the Southern District of New York. At the precise time when the libel was filed in the clerk's office, the schooner W. Kallahan was on a voyage from Albany to Philadelphia, and was not within the Southern District of New York
—and that, at a subsequent day, she came within the district, and was here attached by the process on this libel, and is now responding to the libel.
The time of service of process is the true period of the commencement of a suit, and the jurisdiction attaches to the case from that day. The cause is therefore properly here.
2d. On whom shall the loss fall is the next question. After ascertaining the position of each vessel, as above stated, there is one important fact proved to the entire satisfaction of the court, which must be deemed a controlling fact in the
At the time of the collision, the schooner William Kallahan had no sufficient look-out. The man placed forward was part way down the ladder of the forecastle, and did not descry the Archelaus, and gave no order to the man at the wheel of the approach of danger. It was peculiarly his duty and business, in a place like that, to have remained at his post, and there is no doubt that if he had been at his post, the collision would not have occurred.
As a strong corroborating fact, it appears that the man at the helm, immediately upon the accident, found fault with the look-out because timely notice had not been given him, and in his testimony he adds, that the sails of his vessel prevented his seeing the Archelaus until she was about being struck.
The rule of law is well settled, that a vessel with the wind free must give way in time to a vessel close hauled on the wind, and that a vessel so sailing should not only have a look-out, but that he should do his proper duty.
The evidence in the case shows that the fault rests with the William Kallahan, and she must stand responsible for the consequences.
Decree for libellants, with reference to a commissioner to ascertain the damage.
DAMAGES FOR INJURIES RECEIVED IN RAILROAD CARS.
An action was brought before Judge Campbell, in the New York Superior Court, by Patrick Carroll against the New York and New Haven Railroad Company, to recover damages for injuries received while riding in the cars of that company.
It appeared that, on the 25th of October, 1851, the plaintiff took his seat in the express train, with a ticket for New Rochelle, but as that train did not stop there, he was carried on to Stamford; and the conductor gave him a free ticket back to New Rochelle. Plaintiff got into the return train, which came into colJision with a freight train, running out of time. Some of the brakemen on the forward part of the train were killed, and the plaintiff, being in the baggage car, was severely injured.
The defendants admit their negligence in running their trains out of time, but they also charge negligence upon the part of the plaintiff, in leaving the seat in the passenger car, which had been provided for him, and going into the baggage car, a place of danger, contrary to the rules in the printed notices in the cars. They also rely upon the fact that the plaintiff was a passenger gratuitously.
The court charged the jury that the defendants were bound to carry their passengers with safety, using the utmost care and diligence, so far as human foresight could provide. If the plaintiff was in the cars as a free passenger, that will qualify the responsibility; still, if he was there with license, they are responsible. The defendants' negligence is not denied, but if both parties are alike guilty of negligence, the plaintiff cannot recover. But the negligence of the plaintiff must concur directly with the injury; it must contribute directly, not remotely, not consequentially, to produce the injury. For instance, if the bag. gage had fallen upon him, and injured him, while in the baggage car, he would have been guilty of negligence. You will consider whether there was negligence on the part of the plaintiff. Admitting, also, that he was in an unsafe place, contrary to the rules of the company, you will consider whether he was not in there with the assent and knowledge of the conductor; if so, he was not there wrongfully. If you find that the plaintiff was not guilty of any negligence which concurred to produce this injury, the defendants are liable. Verdict for plaintiff, 84,000.
ACTION TO RECOVER MERCHANDISE WRONGFULLY DETAINED. In the Superior Court, New York, May 4th, 1852, before Judge Oakley. David Dows and Ira B. Carey vs. James B. Perrin and M. M. Caleb.
This was an action to recover possession of 4,822 bushels of corn wrongfully detained by defendants, as alleged in complaint.
The defendants answer, denying any title to the property in the plaintiffs, but affirming that it belonged to one L. W. Brainard, and that defendant Perrin was captain of the canal-bont, on board of which the corn was shipped.
It appeared that, August 7th, 1848, one Bloss negotiated withi Niles & Wheeler, produce and forwarding merchants at Buffalo, for this corn, agreed upon the terms, and obtained the refusal of it for a few days. Soon, Bloss returned to the store with one J. F. Mack, and took from the clerk of Niles & Wheeler bills of lading of the corn, in the name of Mack, and consigned to the plaintiffs. The corn was shipped to New York in the boat of defendant Perrin, and the bills of lading were transmitted to the plaintiffs, who thereupon made advances to Mack, to the amount of the value of the property, upon the agreement that the same had been forwarded to them. Soon after Mack, who had for ten years before been engaged in business in Rochester, and dealing with plaintiffs, absconded. Niles & Wheeler then telegraphed to plaintiffs that the corn had not been paid for, and, requesting them to hold the same to their account, immediately resold it to P. Durfee & Co., and gave them the bill of lading, which by intermediate indorsements came into the hands of Brainard, whom defendants claim to be the owner. The defendant, Caleb, is the partner of Niles & Wheeler, in New York.
It was contended that the clerk of Niles & Wheeler had no authority to make out the bills of lading, and consequently the sale to Mack was invalid.
The Court charged the jury that Niles and Wheeler, by giving these bills of lading, transferred the property to Mack; and that as the plaintiffs had made advances upon these papers, the sale was to be deemed valid if the clerk had the power to sign the papers. The jury were, therefore, to consider whether the act of the clerk, in signing the papers and delivering them to Mack, was done by authority of Niles and Wheeler, either express or implied. No express authority is shown; but if he was held out to the world as an agent, in doing acts countenanced by the principal; if he was in the habit of signing and delivering such papers, the law implies an authority. Again, the law implies an authority Where there is a recognition of an act after it is done. Niles & Wheeler, in this case, telegraphed to plaintiffs that they had stopped the corn, and that it had not been paid for. The jury will consider whether this amounts to a recognition of the right of the clerk to ship the corn, and make the proper papers to the plaintiffs. If, from all the facts in the case, you conclude the authority existed, you will find for the plaintiffs.
Verdict for the plaintiffs, $2,794 for amount, and $723 damages for detention.
PROMISSORY In the Superior Court, May 24, 1852, before Judge Sanford. John D. Williams is. Isaac T. Storm and others.
This was an action upon five promissory notes, made by the Empire Mills, December 10, 1850, amounting to $10,000, payable to defendant, indorsed by defendant and Austens & Spicer, to plaintiff.
The defendants contend that the notes were indorsed for the accommodation of the makers, without consideration, and that they were negotiated at usurious rates of interest. It appeared in evidence that there had been previous dealings between the makers and indorsers ; the makers having consigned to the indorsers large quantities of wool, for which the indorsers of these notes had given their acceptances to the Empire Mills, the makers in this case ; that at length the indorsers had told them that they could not take any more, and thereupon charged the balance on hand to them. The Empire Mills then made these notes, declaring on the face of them, that they were given for this wool, and got them discounted at 12 per cent.
Upon this evidence the Court directed a verdict for plaintiff, subject to the opinion of the Court.
COMMON CARRIER-BILL OF LADING.
In the Supreme Court, New York, April 26, 1852. Before Judge Roosevelt. Henry Gilbert vs. Charles Folger and others.
The plaintiff alleges that he delivered to defendants twenty-seven packages of goods to be forwarded by them to Buffalo, and shows a bill of lading, signed by defendants, acknowledging their receipt; but alleges that only twenty-five reached their destination. He brings suit to recover for the value of the two missing packages, and damages.
The defendants answer that only twenty-five packages were in fact received by them, and aver that they gave a bill of lading for twenty-seven by mistake.
The court instructed the jury that the bill of lading was not conclusive, but between the parties, was open to explanation and alteration. But it is incumbent on the defendants to show that it was made by mistake; and it is for you to consider whether they have conclusively explained it. You have the testimony of the carman that he delivered twenty-seven packages; while opposed to this is the written evidence of the pass-books and the manifest, together with that of the captain of the barge, showing that there were only twenty-five. It further appears that plaintiff requested defendants to enter twenty-seven instead of twenty-five in the bill of lading, although in fact the remaining two had not been brought down to them, as he was in haste to leave that evening. If you conclude that the bill of lading is wrong, the defendants are not liable. Verdict for defendants.
LIABILITIES OF HUSBANDS FOR DEBTS, ETC., OF THEIR WIVES. The following are sections of an "act in relation to the liabilities of husbands for the debts and contracts of their wives contracted before marriage,” passed at the last session of the Legislature of Maine, and approved by the Governor April 26, 1852.
Sec. 1. Hereafter when any man shall marry, his property shall be exempt from any and all liabilities for the debts or contracts of his wife made or contracted before marriage; but an action to recover the same may be maintained against such husband and wife, and the property of said wife held in her own right, if any, shall alone be subject to attachment, levy, or sale on execution, to satisfy all liabilities for such debts and contracts, in the same manner as if she were unmarried.
Sec. 2. In any such action the wife may defend alone or jointly with her husband, but no arrest of the person of such husband or wife shall be authorized upon any writ or execution arising under this act.
1 Sec. 3. Any married woman under the age of twenty-one years shall have, and may exercise, all the rights, privileges and powers enumerated in the several acts now in force, securing to married women their rights in property, in the same manner, and with the same effect, as though she were of full age.
Sec. 4. This act shall take effect and be in force from and after its approval by the Governor.
COMMERCIAL CHRONICLE AND REVIEW.
ABUSDANCE OF CAPITAL AND GENERAL PROSPERITY-SALE OF RAILROAD BONDS-EFFECT OF TIR EXCREASED PRODUCTION OF TIK PRECIOUS METALS UPON THE COMMERCIAL VALUE OF OTHER COMMODITIES-PRICES OF PRODUCE IN THE PAST HAVE NOT BEEN DEPENDENT UPON THE SUPPLY Of cotx-ILLUSTRATIONS OF THIS STATEMENT BY COMPARATIVE TABLES-EXPLANATION OF TIIB CAUSE OF etcH FLUCTUATIONS-TUK TROX SOURCKOP NATIONAL PROSPERITY-FREE TRADE AND PROTECTION-PROFITABLE EMPLOYMENT FOR THE PEOPLE THE OBJECT OF BOTH PARTIESMOVEMENTS IN FOREIGN EXCHANGE-SHIPMENTS OF SPECIE-DEPOSITS AND COINAGE AT THE FUILADELPHIA AND NEW ORLEANS MINTS - IMPORTS INTO THE UNITED STATES-IMPORTS ENTERED IT NEW YORK FOR MAY, AND COMPARATIVE TOTAL FROM JANUARY IST FOR TUREE YEARSSTOCK IN WAREHOUSE-IMPORTS OF DRY GOODS FOR SAME PERIODS-RECEIPTS FOR DUTIESEXPORTS FROM NEW YORK FOR MAY AND FROM JAN. IST-EXPORTS OF PRODUCE-CAUSES OF FLUCTUATIONS IN SUIPMENTS-DISBURSEMENT OF JULY DIVIDENDS AND INTEREST.
The past month has been characterized by unusual commercial activity, considering the lateness of the season, and by a general buoyancy in monetary affairs. Capital contines abundant, and even under the increased demand from parties withing to arrange their liabilities previous to their summer recreation, there has been no advance in rates of interest. This ease in the money-market has led to less recklessness in business thin was generally expected. Real estate has advanced in price, not only near all the great centers of business, but generally throughout the country. This advance, however, has been very different from that usually seen duriog the fever of speculation, when all sections have improved indiscriminately, or the bighest price has been paid for fictitious investments. The sales of laie, particularly near the large cities, have been to more diser minating purchasers, and few large prices have been paid except for a corresponding value. It is true that some property has improved more than others equally eligible, but there have been no active movements in “ water lots” or faney building sites in “eities” not yet incorporated. If any investments have gone beyond the bounds of prudence, the most noticeable are the purchases of railroad bonds, large amounts of which have been placed either by public auction, or by receiving proposals from competing bidders. Where a road has become established, and the money borrowed forms but a part of the saleable value of the property mortgaged for its security, the investment would seem to be a safe one, even if the net income were not inmediately sufficient to pay the interest upon the bonds. But where the original subscription has all been sunk in unproductive labor, and the bonds issued represent nearly the whole saleable value of the road, then the prospect of an immediate permanent income becomes im. portant, and a careful examination of the claims of the borrower would seem a matter of common prudence.
The problein of the effect the increased production of gold is likely to have upon the value of property has become still more interesting since the contribution of Australia has been added to the golden tide. We have never felt the same anxiety which has prevailed in other quarters, because we have believed that the increase of capital, under present circumstances, would so far augment the facilities of trade, and stimulate production, that the present balance between supply and consumption would not be greatly disturbed. Were gold so readily supplied without effort, that the mass of the people could secure a fortune in VOL. XXVII.-NO. I.