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THE LIBRARY

OF

THE UNIVERSITY
OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW



LIBRARY



\5ulVJnia. K^&IIS. i

REPORTS

CASES



ADJUDGED IN



THE SUPREME COURT



OF



PENNSYLVANIA,

IN THE EASTERN DISTRICT.

BY

THOMAS I. WHARTON.

WITH REFERENCES TO CASES IN THE SUBSEQUENT REPORTS,



BY

JOHN SWORD.

CONTINUED BY

I. TYSON MORRIS.
VOL. VI.

CONTAINING THE CASKS DECIDED AT DECEMBER TERM, 1840,
AND MARCH TERM, 1841.

PHILADELPHIA:

T. & J. W. JOHNSON & CO.,
LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS,

No. 636 CHESTNUT STREET.

1885.



45



Entered according to the Act of Congress, in the year 1885,

By T. & J. W. JOHNSON & CO.,
In the office of the Librarian of Congress, at Washington.



JUDGES



SUPREME COURT OF PENNSYLVANIA,



DURING THE PERIOD OF THESE REPORTS.



Hon. JOHN BANNISTER GIBSON,

Hon. MOLTON C. ROGERS, .
Hon. CHARLES HUSTON, .
Hon. JOHN KENNEDY,
Hon. THOMAS SERGEANT,



Chief Justice.



^ Justices.



0. F. JOHNSON, Esq., Attorney-General.






778554



MEMORANDUM.



Judge SERGEANT did not sit in the case of The SeJmylkill
Navigation Co. v. Freedley ; The Franklin Fire Ins. Co. v. Find-
lay; and Thouronv. Paul; being interested in the stock of the
companies named in the first two cases ; and having been of counsel
with one of the parties in the last mentioned case.



NOTE.



THE work done on the former edition of this volume by Mr.
SWORD, and on this edition by the undersigned is distinguished

by parallel (||) lines.

I. TYSON MORRIS.
Philadelphia, January 7, 1885.



TABLE OF THE CASES.



A.


PAQI


Depeau v. Waddington


PAO*

220


Allshouse v. Ramsay


331


Dorr, Tyson v.


256


Arkrim v. Woodwart


577






Arrott 0. Brown


9


E.




Ash 0. McGill


391


Eagle v. White


505






Edgell v. McLaughlin


176


B.




Ellmaker, Riley 0.


545


Baker 0. Haines
Bank U. States, Hall v.


284
585


Everly, Caulk v.
Eyre 0. Marine Ins. Co


303
247


Barclay, Vaughan 0.


392






Beam, Layman <..


181


F.




Berger v. Hiester
Borden, Hubbert .


210
79


Findlay, Franklin Fire Ins.




Bowen v. De Lattre


430


Co. .


483


Bradford v. Bradford


236


Fitler 0. Morris


406


Bradford, Flintham 0.


235


Flintham 0. Bradford


236


Bridge over Smithfield Creek
Brookes, Hartley 0.


363

189


Fox, Ritter 0.
Franklin Fire Ins. Co. 0. Find-


99

A O O


Brown, Arrott v.


9


lay


48a


Brown, Hugg 0.


468


Freedley, Schuylk'l Nav. Co. 0.
Frost 0. Roatch


109
359


C.




Fuchs's Case


191


Campbell v. Gilbert


72


G.




Carstairs, Lewis v.


193






Caulk v. Everly


303


Garside, Cumming 0.


299


Churchman v. Smith


146


Gilbert, Campbell 0.


72


Coats, Penington 0.
Collins v. Smith


277
294


Gilder 0. Merwin
Gossner's Estate


522
401


Commercial Bank of Cincin-




Grew, Zeibert 0.


404


nati v. Pleasants


375


Guenat, Mange v.


141


Commissioners of Philadel-








phia, Comm'lth v.


476


H.




Comm'lth v. Commissioners








of Philadelphia
Comm'lth, Crutcher v.


476
340


Haines, Baker 0.
Hall 0. Bank United States


284
585


Comm'lth v. Sparks
Comm'lth, Stecher v.


416
60


Hand, Simpson 0.
Hankinson, Van Meter 0.


311

307


Comm'lth v. Watmough
Cope, Hoofsmith v.
Crutcher v. Comm'lth


117
53
340


Hartley 0. Brookes
Hice v. Kugler
Hiester, Berger v.


189
336
210


Cumming r. Garside


299


Hoofsmith 0. Cope
Horback 0. Reeside


53

47






Hubbert 0. Borden


79


.




Hugg 0. Brown


468


Davis, Quinlan 0.


169


Hugg 0. Scott


274


De Lattre, Bowen v.


430


Humphreys v. Reed


435




(Vii)





Vlll



TABLE OF CASES.



J.


PAGE


y.


PAOS


James, McCredy v.


547


Quinlan v. Davis


169






Quinn v. Wallace


452


K.












R.




Kerr, Marseilles .
Keyser, Springer v.
King's (Daniel) Estate
King v. Richards
Kisterbock, Kuhn .
Kleckner . Lehigh Co.
Knight, Southwark Ins. Co. .
Kugler, Hioe v.


500
187
370
418
166
66
327
336


Ramsay, Allshouse v.
Reed, Humphreys v.
Reeside, Horbach v.
Richards, King v.
Riley v. Ellmaker
Ritter v. Fox
Roatch, Frost .


331
435
47
418
545
99
359


Kuhn . Kisterbock


166


S.








Schultz, Ex parte


264


L.




Schuylkill Nav. Co. v. Freedley


109


Layman . Beam
Lehigh Co., Kleckner v.
Lewis v. Carstairs


181

66
193


Scott, Hugg v.
Simpson v. Hand
Smith, Churchman r.


274
311
146


Lewis v. Williams


264


Smith, Collins v.


294


Lyons . Ott


163


Southwark Ins. Co. v. Knight
Sparks, Commonwealth v.


327
416


M.




Springer v. Keyser
State Road from Howell's Mills,


187


McCredy v. James


547


Case of


352


McGell, Ash v.


391


Stecker v. Commonwealth


60


McKennan v. Phillips


571


Swallow, Walters v.


446


McLaughlin, Edgell t>.


176






Mange v. Guenat


141


T.




Marine Ins. Co., Eyre .


247


Thouron v . Paul


615


Marseilles . Ken-
Mechanics' and Tradesmen's


500


Tuttle v. Mechanics' & Trades-
mens' Loan Co.


216


Loan Co., Tuttle .
Merwin, Gilder v.


216
522


Tyson v. Dorr


256


Miller v. Musselman


354


v.




Morris, Fitler v.
Musselman Miller v.


406
354


Van Meter v. Hankinson
Vaughan v. Barclay


307
392


0.




W.




Ott, Lyons .


163


Waddington, Depeau v.


220






Wallace, Quinn v.


452


P.




Walters v. Swallow


446


Parker v. Wells
Paul, Thouron v.
Penington v. Coats
Phila. & Trenton Railroad,
Case of


153
515
277

25


Watmough, Commonwealth v.
Wells, Parker v.
White, Eagle .
Williams, Lewis w.
Woodward, Ankrim v.


117
153
505
264
577


Phillips, McKennan .


571






Pleaeanta, Commercial Bank




Z.




of Cincinnati v.


375


Zeibert v. Grew


404




CASES

IK

THE SUPREME COURT

OF

PENNSYLVANIA.



EASTERN DISTRICT DECEMBER TERM,' 1840.



[PHILADELPHIA 1840.]

Arrott against Brown. 1

IN ERROR.

1. The general rule is that for an agent's omission to keep the principal
regularly informed of the agent's transactions, and the state of the interests
intrusted to him, the measure of damages is to be proportioned to the actual
loss sustained by the principal.

2. An exception to this rule is where the information transmitted is such
aa may induce the principal in the adaptation of his operations to his means,
to rely on an outstanding debt as a fund on which he may confidently draw ;
in which case the agent makes the debt his own. 1

3. The case of Harvey v. Turner, 4 Rawle 223. commented upon, || and
distinguished.il

THIS was a writ of error to the District Court for the City and
County of Philadelphia, to remove the record of an action on the
case brought by Andrew Brown against James Arrott.

1 This and the next following case were argued at March Term 1840.

* The present was held not to be such case. A mere account of sales show-
ing the existence of a debt, but containing nothing to indicate that it might
be relied on as a productive source of ready money, is not such above de-
scribed information as will take a case out of the general rule : infra *24 ;
nor. semble, is the advance of money on the credit of goods consigned, when
such advance is made before any sale : Myers v. Brice, 12 W. N. C. 87. ||



9 SUPREME COURT [Dec. Term,

[Arrott v. Brown.]

The plaintiff was a manufacturer of linen goods, at Dundee, in
Scotland, and had made several consignments of his goods to the
defendant, who was a merchant in Philadelphia, for the purpose
of sale on commission.

s^n-i *This action was brought to recover damages for an
J alleged breach of the defendant's duty as agent, in respect
to the sale of certain of the goods.

On the trial in the court below, before Pettit (President), on
the 12th of November 1839, it appeared that the defendant, on the
22d of September 1822, had sent ten bales of these goods, for sale,
to one James Young, of Boston, who sold the same, but failed,
without paying over the proceeds.

The principal subjects of dispute on the trial were the liability
of the defendant for this debt of Young ; and also for a sale made
by him in June 1822, to one Folwell, in Philadelphia, who like-
wise failed without paying for the same. The plaintiff sought to
charge the defendant with these debts, on the ground that, by his
negligence and failure to give due notice to him, the defendant
had made the debts his own.

The plaintiff wrote to the defendant on the 22d of May 1822,
authorizing him, in case any of the goods were unsaleable with
him, to send " a few bales to Baltimore, or any of the neighboring
cities," if he thought it advisable, taking care to put them in safe
hands.

The defendant wrote to the plaintiff on the 15th of June 1822,
stating that the article of ducks and dowlas never were, and he
feared would not be very soon saleable in the Philadelphia market ;
adding that he would do the best with his, the same as if they were
his own ; and if he should learn of a better market within the states
for them, and it should be his business to inquire, would send them
to it without waiting his orders.

It appeared, from the evidence, that Mr. Perit, of Philadelphia,
had received in the year 1822, from S. and T. H. Perkins, an emi-
nent commercial house of Boston, a letter recommending in strong
terms one Mr. Andrew Thomson, a merchant of Scotland, who had
resided a good deal in Boston, and requesting Mr. Perit to furnish
him with introductions to his friends.

Mr. Perit accordingly introduced Thomson to the defendant,
and at his recommendation of Young as a suitable person for that
purpose, Arrott sent to him ten bales of the plaintiff's goods, and
four others from another consignor, requesting him to dispose of
them soon after arrival at the best prices. A correspondence then
took place between Arrott and Young, of which the material parts
are here given.

On the 22d October 1822, Young wrote to the defendant that
he had tried three bales at auction, which had been sold at rates



1840.] OF PENNSYLVANIA. 11

[Arrott v. Brown.]

*which he mentioned two of them bearing the plaintiff's p^-. ,
mark, and the other that of the owner of the residue of the
goods ; and on the 13th of November wrote that he had made
another attempt to dispose of the linens at auction, but stopped the
sale, the prices being so unfavorable, arid communicated an offer
from a private house of eighteen cents for the dowlas. This offer
the defendant declined, but expressed his willingness to let the
dowlas go for nineteen cents to an undoubted house, and the sheet-
ings at twenty-four to twenty-five cents. On the 22d of Decembei
Young wrote to the defendant that, not having met with a bettei
offer for the dowlas than eighteen cents, it was still unsold, and in
his opinion had better be held until spring, or at least till an
improvement in prices. No farther correspondence took place
between them on the subject until the following spring. On the
19th of April 1823, the defendant requested Young to advise him
of his prospects. The latter, in reply, stated that he had not been
able to sell the linens at private sale at the limits, but had from
time to time disposed of a few of them, by auction, at nineteen to
twenty cents for the dowlas, and about twenty-four cents for the
sheetings. On the 21st of May Young wrote to the defendant
that he had sold some more of the dowlas at twenty cents, at which
he expected soon to close sales. On the next day, and before he
had received Young's last, the defendant wrote to him that, since
his letter of the 23d ulto., he was without any communications
from him, although daily expecting to hear, and also to receive an
account-sales of linens so far as they had been made, accompanied
with a remittance ; and on the 25th of May he wrote to Young
that when he had closed sales of the dowlas, &c., he would be very
glad to receive accounts of the same, with a remittance. On the
3d of July the defendant wrote to Young that since his of the 21st
May he was without any communication from him, and referring
to his own of the 22d and 28th of May, requested account-sales at
as early a day as possible, to be incorporated into his own account-
sales, which he desired to send by his nephew, David Arrott, who
was to sail for Liverpool on the 20th of July.

On the 16th of July, Young enclosed an account-sales, by which
it appeared that he had sold the whole of the goods, to the amount
of about 32700, of which $1887 belonged to the plaintiff. By the
terms of the credits, about one-half of these sales would be due by the
end of July ; a portion of them having matured in the previous spring.
These last were the credits upon goods sold in the autumn ; as to
which it appeared that Young had, in reality, sold in the autumn
a greater quantity of goods than his letters to the defendant had
announced.

On the 22d of July, the defendant drew on Young, at three days'



12 SUPREME COURT \_Dec. Term,

[Arrott v. Brown. J

*-i 9-1 *sight, for $1350.19, the amount of sales for which he would

' J be in cash, on the 30th of that month, after deducting
charges.

This draft Young was unable to pay, having, as he stated, antici-
pated the amount of the sales from the auctioneer, in order to meet
some pressing payments. His first open act of insolvency was the
dishonor of this bill.

Mr. Arrott, after advising with counsel in Philadelphia as to
this debt of Young, went on to Boston, and consulted Mr. Hub-
bard, an eminent professional gentleman of that city, who however,
being of counsel for the Messrs. Andrews, who had an interest
adverse to that of Young, recommended the defendant to employ
Mr. Sullivan, which he accordingly did.

It appeared that Winslow, Channing & Co., of whom Mr. Sulli-
van, jointly with Thos. H. Perkins and Isaac Winslow were
assignees, had advanced money to persons, of whom Young was one,
to purchase, and load, and send to Africa, a vessel to bring back a
cargo. That vessel, and outward and homeward cargo were pledged
to Winslow, Channing & Co., and came into the hands of the
assignees. It was expected that Young's part of this property
would be sufficient to pay the demands of Winslow, Channing &
Co., and leave a surplus for his own use ; but a litigation arose
between Young and his co-partners in the adventure, which was
pursued in the Admiralty Court, and in the state court. Acting
for the assignees of Winslow, Channing & Co., Mr. Sullivan at-
tended to these litigations as to the amount of their interest ; and
that claim being satisfied, further attended to them in order to in-
crease the amount which might fall to Young's share of the residue
of the African adventure, to secure payment of Arrott's demand.
The defendant pressed Young very earnestly for payment, who
gave him an order for 10s. in the 20s., on Isaac Winslow, who held
the money under the assignment, and who accepted the order con-
ditionally. The claim of Winslow & Co., being satisfied, a balance
remained, which Andrews claimed as a creditor of the partnership
in the vessel of Young and Andrews ; and Young claimed the same
balance as creditor of the partnership. Young and Andrews en-
gaged in litigation, and joined in a suit against the assignees for
the balance, which would have been paid but for the acceptance of
Winslow in favor of Arrott, which had been previously obtained by
him. Mr. Sullivan defended this suit to have out of the balance
the sum intended for Arrott. The court ordered judgment and
execution for the plaintiff. Young had no property but his interest
in this fund.

In compromise of the defendant's claim, Mr. Winslow proposed
to pay him six hundred dollars, which he was willing to accept,



1840.J OF PENNSYLVANIA. 13

*

[Arrott v. Brown.]

and give up Winslow's acceptance, reversing this claim r*io
against Young *personally. But the parties in Boston
insisting on Young's discharge, which Arrott did not feel himself
authorized to give, the negotiation fell through.

Mr. Hubbard testified that he thought at the time the arrange-
ment made by the defendant in procuring the order of Young, and
conditional acceptance of Winslow, a very favorable one for him,
and that he had shown great skill and judgment in obtaining it ;
and that he believed until the year 1826, that Arrott would event-
ually realize more for the order than any of the separate creditors
of Young, except Wm. Andrews ; believing that a compromise
would be finally entered into, by which he would secure from 20
to 25 per cent, of the principal of the debt. He was of opinion
that the defendant did adopt, at the time, the best and most pru-
dent measures in his power for the purpose of securing the debt ;
and that he could not have adopted any measures more likely to
obtain security or payment of a part of it : but he did think in 1826
it would have been wise on the part of the defendant or his princi-
pals, if in his or their power, to have made a compromise with
Winslow and Young, and have given Young a discharge in full.

This step was taken by the defendant to secure payment before
Young and the causes of his eventual want of success to realize any-
thing from the debt, were fully stated in the deposition of Mr. Sul-
livan, and the correspondence between him and the defendant,
which were read in evidence on the trial.

A number of witnesses were examined by the defendant, under
a commission to Boston, to prove that Young's mercantile credit
and standing were fair during the years 1822 and 1823 to the time
of his failure.

No written notice was given by Arrott to Brown of his having
sent the goods to Boston, nor of the failure of Young, till the 7th
May, 1824, when he wrote as follows :

" I have been endeavoring to bring your sales to a close in order
to hand you the same, but it has not been in my power to do BO
completely : and in consequence of David's wishes, I have con-
cluded upon making them out so far as they have been effected,
with a statement of what remains on hand. It is at his request
I send this line, otherwise I would not have written you for a few
weeks yet to come, being anxious when I did write, to be able to
say how many shillings there would be in the pound coming from
a bad debt, made on your account at Boston, to the amount of
upwards of $1800, and up to this date I cannot tell. The instant
I knew your property was in jeopardy, I went on there on purpose ;
and after waiting 14 days, and doing everything man could do,
succeeded in getting 10*. *-in the pound, as I thought and
still think ; but there is no dependence upon any security



14 SUPREME COURT [Dec. Term,

f Arrott v. Brown.]

until the money is actually paid ; which the lawyer thinks may be
the case in July. The whole amount of the debt was $2700 ; the
balance is on account of my brother-in-law, Mr. David Lumgair.
This bad debt has preyed on my mind very much, and one reason
for my silence was, when I did write you about it, that I might be
able at the same time to say, not that I have secured, but that 1
have actually received 10 shillings in the pound, which I was in
hopes of getting before this day. If I had had money to have sent
you, you should have got it, or good news of any kind to communi-
cate, you should have heard from me, but to have nothing to write
about, save bad debts, bad sales, &c., it was to me an irksome task,
and is so now, but David has this morning insisted on my writing,
and I remain," &c.

To this letter the plaintiff replied on the 21st June, 1824. " I
have received your favor of the 7th ult., and regret the accounts it
contains are so very unfavorable with regard to the shipments I had
made to you. I hope you will get the whole cleared off soon, and
send me an account-sale and remittance. As to the bad debt you
have made in Boston, you will excuse me for holding you responsi-
ble to me for it, since my instructions to you on the 22d May,
1822, were, if you had occasion to send a few bales of my goods
to Baltimore, or any of the neighboring cities, you would take care
to put them in safe hands. I was perfectly satisfied when they re-
mained in your hands ; there was no risk, and I wished if they
were removed, to be in the same situation ; besides you not advis-
ing me of the bad debt till long after it had happened, takes all
responsibility from me, although the goods had even been sold at
my risk. I regret this occurrence extremely, and hope you will
not find the loss serious."

To this letter the defendant never replied.

On the 23d, 1824, David Arrott wrote from New York to the
plaintiff: "The enclosed packet containing your account-sales,
and account-current made up to the 31st ult., I brought on from
Philadelphia yesterday, in order to despatch by this opportunity.
My uncle desired me to say that he would be writing at length re-
garding them, and also of the goods remaining on hands unsold. I
was extremely sorry to hear on my return to this country, of the
bad debt made on your account in Boston, but I trust there will be
10 shillings in the pound sterling got from Young. My uncle
went on himself to Boston, and did everything in his power to get
secured in what he could, but of these particulars he will be writing
you himself. Sales of all kinds of bleached sheeting are very dull
both here and in Philadelphia."

"The account sales referred to in the last letter, entitled
sales per sundry vessels, showed as follows :



1840.] OF PENNSYLVANIA. 15

[Arrott v. Brown. J

Net account sales . . . $6398 85
Of which at Baltimore, 897 28
Boston, by Jas. Young, 1887 70

2784 98



And the residue $3613 87 at Phila.



Account current referred to in last letter.
Dr. Plaintiff,

To charges, 2532 89

Bills of exchange, 9431 23
Bal. Int. Column, 374 99

12339 11

Or. By total sales, . 13931 36
Less sales,

To Jno. Folwell, $283 50

By Jas. Young, at Bos. 1887 70

2171 20

11760 16

1824, May 31.

Balance in cash due by plaintiff to defend-
ant, $578 95



David Arrott, whose deposition was taken by the defendant, tes-
tified " that in the month of July, 1823, he sailed for Europe from
Philadelphia : for six years previously he had lived with defendant
as his clerk, and was intimately acquainted with his concerns. He
knew of several consignments to the defendant by the plaintiff in
the spring of 1822, and that the defendant sent a part of said
goods to Boston, and consigned them to James Young at that place
for sale, the market being bad for the goods at Philadelphia. He
sent at the same time to Young, some of the goods of the plaintiff,
and some goods which had been consigned to the defendant by
David Lumgair. * * * On the day of deponent's departure or
the day before, defendant received an account of sales, but no
remittance. That the defendant gave this deponent particular
instructions to see the plaintiff, and to inform him of the state of
his consignment particularly, and of sales which had been made at
Boston; and gave deponent a short letter of introduction to the
plaintiff, and a recommendation to Mr. Brown of deponent's house
at New Orleans, which was just then established. That shortly
after the deponent's arrival in England, he went to Scotland, and in
August or September 1823, he visited the plaintiff at Dundee, and
made him particularly acquainted with the state of his consignment,



16 SUPREME COURT \_Dec, Term,

[Arrott v. Brown.]

x-, fl-i *and of the sales made at Boston. The plaintiff inquired
of deponent what prices the goods brought at Boston, and
the deponent informed him : a good deal of conversation took place
between the plaintiff and the deponent, but the plaintiff made no
complaint or objection to the defendant's having sent the goods to
Boston for sale, nor to any other particular of the defendant's con-
duct in the management of the business. That the deponent shortly
after went to England, and whilst there he received a letter from
the plaintiff, inquiring of him if he had heard from his uncle the
defendant, which letter the deponent answered, and in that letter,
or verbally in a visit which he shortly afterwards made to Scotland,
again he informed the plaintiff that he feared something had hap-
pened in Boston, as he heard incidentally from a friend at New York
that his uncle had passed hastily through that place on his way to
Boston."

Cross-examined. " The goods were sent to Boston in April or
May 1822. Mr. Arrott received no regular account-sales until the



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