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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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were thereupon obliged to pay, and did pay a large sum of money,
to wit, $500, for the freight aforesaid, and did necessarily incur
and pay divers other incidental charges in respect to said consign-
ment and acceptances, amounting to a large sum of money, to wit,
$1000, and the amount of said acceptances for a sum equal to and
greater than $6100, to wit, $6992.66, whereof part, to wit, $2500,
was due and payable heretofore, to wit, on the 25th day of March
1837; other part, to wit, $3400, heretofore to wit, on the 27th day of
the same month ; and the residue, to wit, $872.66, heretofore, to wit,
on the 14th day of the same month ; and that the amount of the said
commission was a large sum of money, to wit, $300 ; of all which
said several premises said defendant afterwards, to wit, the day and
year aforesaid, there had notice. Yet said defendant, his several
promises in this count mentioned not regarding, did not, nor would,
nor has before, or at, or since the respective maturities aforesaid of
the said several acceptances, or any of them, pay off or discharge
$6100, or any part thereof, or the amount, or any portion of the
amount of them, or any of them, or pay any for or towards the
same, but wholly refused so to do, and wholly neglected and refused
to save harmless, and keep indemnified said plaintiffs to the amount
of $6100, or to any amount, from any claim, demand, or liability,
for or by reason thereof, but left them wholly exposed and liable to
all claims and demands in respect thereto, by reason whereof plain-
tiffs were compelled to pay, and did pay, the full amount thereof to
the respective holders of the same. Nor has said defendant at any
time paid to said plaintiffs the amount, or any part thereof, of said
freight, or of said commissions, or of said charges, but the same to
pay them has *hitherto wholly neglected and refused, and r>er-i
still does neglect and refuse."

The 4th count declared, that " one Thomas Fey, being the owner
of other goods then on shipboard, consigned to plaintiff, his factors,
on whom the bill of exchange hereinafter mentioned had been drawn,
which they, at said Fey's request and for his accommodation, had
accepted, and for the amount whereof, at their respective maturity,
the said plaintiffs were liable to the holders thereof, and on the
amount whereof they were by agreement with said Fey to receive a
reasonable commission in that behalf; a discourse was had and
moved by and between said Fey and defendant, of and concerning

6 WHAKTON 35



551 SUPREME COURT [March Term,

[McCredy v. James.]

the transfer of said goods then about to be made by said Fey to
defendant upon certain terms, and conditions, and considerations,
and for certain promises then and there mentioned and agreed upon
between them ; whereupon defendant, in consideration that at his
request said Fey did then and there accordingly transfer to him
said goods as aforesaid, undertook, and then and there promised
said Fey, before or at the maturity of plaintiffs' said several accep-
tances respectively to pay off and discharge the amount thereof, not
exceeding $6100, and to save harmless and keep indemnified the
said plaintiffs to that amount, of, and from, and against all claims,
demands, and liabilities whatsoever, for or by reason thereof, also to
pay said plaintiffs the amount of freight for the carriage of said
goods for said voyage, and of the commissions aforesaid, and of all
other incidental charges that might necessarily be incurred in
respect to said consignment. And plaintiffs show that said goods
were afterwards, on the same day and year, there delivered to
plaintiffs as consignees thereof as aforesaid, and they were thereupon
then and there obliged to pay, and did pay, a large sum of money,
to wit, $500, for the freight aforesaid, and did then and there
necessarily incur and pay divers other incidental charges in respect
to said consignment amounting to a large sum of money, to wit,
$1000, lawful money, and that over and above, and beyond the
amount of said charges their said acceptances did not exceed $6100,
but amounted to a less sum of money, to wit, $5900. The said
acceptances being of two several drafts, of which one for $2500,
according to the tenor and effect thereof, and of said acceptances
thereof, became, and was due and payable on the 25th day of March
1837, to wit, at said county; and the other for $3400, according to
the tenor and effect thereof, and of said acceptances thereof,
became, and was due and payable on the 27th day of the same
month, to wit, at said county. And that the amount of said com-
missions was a large sum of money, to wit, $300, of all which said
several promises defendant afterwards on same day and year, at
said county had notice ; -yet said defendant, his promises in this
count mentioned not regarding or in anywise observing, did not,
sfrccn-i nor has, before, or at, or after the maturity *aforesaid of
J said several acceptances or either of them, pay off or dis-
charge the same, or the amount thereof, or any part thereof, or pay
anything towards the same, but wholly neglected and refused so to
do, and wholly neglected and refused to save harmless or keep them
indemnified of, and from, and against any claim, demand or liability
for, or by reason thereof, but left plaintiffs wholly exposed and liable
to all claims and demands in respect thereto, by reason whereof said
plaintiffs were compelled to pay, and did pay, the full amount to the
respective holders of the same, to wit, the day and year aforesaid,
at said county, nor has said defendant at any time paid to plaintiffs






1841.] OF PENNSYLVANIA. 552

[McCredy . James.]

the amount of any part thereof of said freight, or of said commis-
sions, or of said charges, but the same to pay to them has hitherto
wholly refused, neglected, and still does neglect and refuse."

The 5th count was for goods bargained and sold ; for the price
and value of work done, &c. ; for money lent ; for money paid by
the plaintiff for the use of the defendant ; for money had and
received ; and upon an account stated.

The defendant pleaded non assumpsit and payment ; upon which
issues the cause came on to be tried before Jones, J., on the 21st
of January 1840.

The plaintiff gave in evidence the order stated in the declaration,
and the following alleged acceptance, signed by the plaintiffs :

" We have accepted the order of Thomas Fey in favor of Dennis
McCredy, requesting us to deliver a lot of lard, say sixteen hundred
and twenty-three kegs, shipped to our address from Cincinnati, by
the said Thomas Fey, and upon which lard we have accepted certain
drafts for the purchase thereof, and charges on the same at New
Orleans he, Mr. McCredy, to pay us for accepting the said
drafts and charges.

And we have further agreed to sell the said lard for account of
the said Mr. McCredy, at four per cent, commission and guarantee,
including the above commission for accepting, he placing us in funds
to meet the drafts when due.

New York, Feb. 7th 1837. WM. & JNO. JAMES."

(On a loose scrap with the above, is the following, in the same
handwriting.)

Drafts drawn by Thomas Fey, March 22d 25th 2500

March 24th 27th 3400 5900.00

Drafts for charges at N. Orleans, llth 14th March, 892.96

Paid postage, 3.00

Freight will be 426.04 429.04

$7222.00

*A great deal of other evidence, both written and parol,
was given on both sides. All that is material for the com-
prehension of the case, is fully stated in the charge of the learned"
judge ; which was in substance as follows :

This action is brought to recover damages for the breach of an
alleged contract. It appears that Mr. Thomas Fey, a merchant of
this city, shipped 1627 kegs of lard from Cincinnati, via New
Orleans, to New York, in the fall or winter of 1836, and consigned
them to the plaintiffs. He drew upon them in the month of



553 SUPREME COURT [March Term,

[McCredy v. James, j

December 1836, two bills, one for $2500, and the other for $3400,
which the plaintiff accepted. On the 4th of February 1837, Mr.
Fey drew an order on the plaintiffs requesting them to deliver to
the defendant 1627 kegs of lard, upon its arrival from New Orleans,
the defendant paying the plaintiffs the amount of their acceptances,
not exceeding $6100, freight, and commissions on acceptances, &c.
Three days afterwards, viz., on the 7th February, Mr. John
McCredy (since deceased) presented this order of Mr. Fey, endorsed
by defendant, to the plaintiffs, and took from them a paper in which
the plaintiffs say they have accepted the order ; he, Mr. McCredy,
to pay them for accepting the said drafts. With this paper he took
another, containing a statement of the amount of the drafts and
charges, making together the sum of $7222. The lard had not
arrived at the time the order was presented to the plaintiffs ; and
no actual delivery of the lard was ever made by the plaintiffs to
Mr. John B. McCredy, or to the defendant. In the paper, how-
ever, which the plaintiffs gave to Mr. John McCredy, there is a
clause purporting to be an agreement by the plaintiffs to sell the
said lard for account of the defendant, at 4 per cent, commission
and guaranty, including commissions for accepting ; he (the
defendant) placing the plaintiffs in funds to meet the drafts
when due. The lard, as it appears by a letter of the plaintiffs, dated
llth February, arrived at New York on the 8th February, the day
after Mr. Fey's order was presented to them. Mr. McCredy replied
to the plaintiffs' letter of the llth of February, on the 13th
February, and a considerable correspondence followed between the
parties relative to this business. It appears, also, that the lard
remained unsold (at least a considerable part of it) for several
months ; and ultimately it was sold at prices insufficient to cover
the amount of the acceptances and charges. The net proceeds to
account, according to the plaintiffs' allegation, being only $5699.05;
the acceptance and charges exceeded $7000. Such is the outline
of this case, as it has been presented by the plaintiffs. In order
to decide the controversy, it will be necessary to examine, with
some particularity, the transaction which occurred on the 7th
February 1837, between the plaintiffs and Mr. John B. McCredy.
The defendant alleges that the transaction was simply a transfer of
the lard to him, subject to the plaintiffs' lien for acceptances,
* r ^41 *f re ight> an( l commissions; that he acquired thereby the
' right to receive any balance which might be owing to Mr.
Fey, after deducting the claims of the plaintiffs ; but that he came
under no obligation whatever to pay those acceptances, or make good
any deficiency. The defendant took this ground, as you will see, in
his letter of the 8th April 1S37. The plaintiffs, on the other hand,
contended, that by that transaction the defendant made a contract
with them, whereby he assumed the responsibility of paying these



1841.] OF PENNSYLVANIA. 553

[McCredy v. James.]

acceptances, commissions and charges, or of furnishing them with
the means to do so; and inasmuch as the proceeds of the lard fell short
of the required sum, they contend that the defendant is liable to them
in damages, to the extent of the deficiency. Such is the dispute between
the parties broadly stated. We are, then, to look into the evidence,
in order to determine whether such a contract was made by the
defendant as the plaintiffs allege, or whether the defendant's view
of the matter is the correct one. It will be necessary, also, if you
should find that John B. McCredy made such a contract as the
plaintiffs say he did, to inquire and decide whether he had his
father's authority to do so, or if not, whether his father afterwards
confirmed or adopted his acts. The cause has been very fully dis-
cussed, and a good many questions of law made, which I am obliged
to notice ; and in doing so, it will be necessary to speak of facts,
though I do not intend by anything I say, to take from you the
determination of any fact that is disputed. To make the case as
intelligible as I can to you, I shall follow pretty much the order of
the transaction, as well as the order which the counsel have adopted
in their arguments ; and as I proceed, I will decide the questions
of law as they arise, and having explained to you the grounds of
law upon which the case rests, I will then put to you, as distinctly
as I can, the questions of fact, which you must determine. The
first piece of evidence to which I ask your attention is the order of
Mr. Fey upon the plaintiffs, in favor of the defendant. It is in
the following words (Here the judge read the order). Now, you
will observe that this order calls for the delivery of the article
itself, and not for the proceeds of it, or the balance of the proceeds,
after paying the acceptances, freight and commissions, and if it had
been carried into effect according to its very words, what would
have been done ? Why, obviously this the plaintiffs would have
delivered to Mr. McCredy, (the defendant), the 1627 kegs of lard
upon its arrival from New Orleans, or to some person authorized
by the order of Mr. McCredy to receive it. And Mr. McCredy on
the other hand, would have paid to the Messrs. James the amount
of their acceptances, not exceeding $6100, and the freight and
commissions. The order certainly contemplated such a transaction.
If this had been done, it is not easy to see how any such dispute as
the present could have arisen between these -parties. The defendant,
on receiving the lard, would have had the control of it. He would
have had the power *to sell it, consign it, or send it where r*sct;
he chose ; and if he could not have sold it for so much as he *-
had paid for it, the loss would have fallen on him, and not on the
plaintiffs. Here I will stop for the purpose of saying a few words con-
cerning this piece of evidence, taken by itself, without reference to
what was afterwards done with, or under the order. It cannot be
said that the mere fact of Mr. McCredy 's having taken this order



555 SUPREME COURT [March Term,

[McCredy James.]

from Mr. Fey, amounted to a contract, or proof of a contract, by
the defendant with the plaintiff's, to take the lard and pay the
incumbrances. It may be that Mr. McCredy was under an obli-
gation to Mr. Fey to present the order and take the lard, and pay
off the incumbrances, or it may be that Mr. McCredy would have
been entitled, as against Mr. Fey, to the balance of the proceeds of
the lard in the hands of the plaintiffs, if it had been sold for more
than the liens on it. We should know better how to answer these
questions or suppositions, if we knew particularly the relations and
transactions between Mr. Fey and Mr. McCredy. But all I need
say to you on this point is, that the mere fact that Mr. Fey gave
this order to Mr. McCredy, and that Mr. McCredy accepted it from
Mr. Fey, if nothing more had been done with it, would not make
Mr. McCredy liable to the plaintiffs to pay the acceptances, and
pay the freight and commissions mentioned. But more was done
with this order. Mr. McCredy, the defendant, endorsed it, and
delivered it to his son, Mr. John B. McCredy, to take it to the
plaintiffs and get them to accept it. This is proved by the testi-
mony of Mr. Dennis A. McCredy ; and this, by the way, the
defendant contends was the whole extent of the authority which the
defendant gave to John B. McCredy. The question of Mr. John
B. McCredy's authority will come up hereafter. We are now
endeavoring to show the effect of the acts of the parties, (supposing
the authority of Mr. John B. McCredy was sufficient). I come,
then, to the second paper in order, viz., the plaintiffs' acceptance
of this order, which is in the following words (Here the judge
read the paper referred to). By accepting this order, the plaintiffs
came under an obligation to deliver the lard according to the tenor
of the order ; that is to say, it amounts to an agreement by the
Messrs. James to deliver to Mr. Dennis McCredy (or to such person
as he should authorize to receive it) the 1627 kegs of lard, on their
arrival from New Orleans, Mr. McCredy paying to them upon
delivery their acceptances, &c. This acceptance of the order, how-
ever, did not amount to a delivery of the lard. If, instead of taking
this written acceptance of this order from the plaintiffs, Mr. McCredy,
in person or by his agent, had demanded the lard, and had received
it from the plaintiffs, but without paying at the time of the delivery
their acceptances, the freight and commissions, &c., that would have
been evidence of a contract by the defendant to pay the plaintiffs
the sums mentioned in the order. But no actual delivery of the
lard was made. In fact it had not arrived at the time the order
#<-/>-] was *accepted, according to the evidence. We are now, how-
* ever, upon the question whether this writing (called the
acceptance) contains any contract by the defendant to pay the sums
mentioned in the order? And certainly it does not. This accept-
ance was wholly the act of the plaintiffs, and the words used in it



1841.] OF PENNSYLVANIA. 556

[McCredy v. James.]

are the plaintiffs' words, and not the defendant's words. The
defendant must say something, or do something, that amounts to a
contract in order to bind him. Whether there is not evidence of
actings and doings by Mr. John B. McCredy, in his father's behalf,
not contained in this paper, which amount to a contract, is another
question to be considered hereafter. All I say at present is, that
this paper, called the acceptance, taken by itself, or taken in con-
nection with the order of Mr. Fey merely, does not make a contract
by the defendant with the plaintiffs to pay them the sums men-
tioned in the order. The next piece of written evidence which I
call your attention to is, the portion of this writing which follows
the acceptance which I shall call the stipulation of the plaintiffs
to sell the lard for Mr. McCredy. It is in these words (Here the
judge read the portion of the paper referred to). This I consider
an important piece of evidence, not, however, because it contains
the very contract of the defendant; it is the very reverse of that;
it purports to contain the contract of the plaintiffs? The words
used in it are the plaintiffs' words, and not the defendant's words,
and the paper is signed by the plaintiffs, and not by the defendant.
For aught that appears upon the face of this paper, or, I might
say, of these three papers, viz., the order, the acceptance, and this
stipulation to sell, (if we except the endorsement of the order by
Mr. McCredy) we could not certainly know that Mr. McCredy ever
had anything to do with them. The order contains the words of
Mr. Fey ; the acceptance and stipulation to sell contain the words
of the plaintiffs, and neither of them contains any words of Mr.
McCredy whatever, excepting the endorsement of his name in blank
on the order. In point of fact, however, Mr. McCredy may have
had a great deal to do with them ; I by no means say that he had
not. He may have made a contract with these plaintiffs, of which
these papers form an important part of the evidence. What I wish
to be understood as saying is, that the defendant's contract, be it
what it may, is not contained in either of these three papers. But
to find out whether he made any contract, and if so, what it was,
we must be set at large, and be permitted to look into the transac-
tion with which these papers stand connected. The rule which
has so often been referred to by the counsel, that oral evidence
cannot be given of the terms of a written contract, has no applica-
tion, in my judgment, to this case, at least so far as the defendant's
part of the contract is concerned, whatever may be the extent to
which it ought to be applied in regard to the plaintiffs' part of the
contract. When the stipulations of one party to a contract in
writing, and the stipulations of the other party *are not r*rc7
in writing, the evidence of the contract -is partly written "
and partly oral ; and if the law does not require that the contract,
should be wholly in writing, it may be proved nay it can only be



557 SUPREME COURT [March Term,

[ McCredy v. James.]

proved, by showing how it was made and to shut out the oral
evidence of one-half, on one side of the agreement, because the
other side of the agreement is in writing, would in fact be saying
that such contracts shall not be proved at all. But to proceed in
the examination of this third piece of the written evidence. I
reserve for the present the question, whether the defendant, by
words or acts, closed in with the terms of this stipulation of the
plaintiffs to sell for his account. We will suppose for the present
that he did, not meaning to prejudice or prejudge the case by the
supposition ; and afterwards we will consider whether the evidence
proves it. I observe, then, in the first place, that this stipulation
of the plaintiffs to sell the lard for account of Mr. McCredy, is a
matter quite distinct from the acceptance. The order and the
acceptance connect three parties, Mr. Fey, Mr. McCredy and
the Messrs. James. But this stipulation, or agreement, of the
plaintiffs to sell, &c., on the terms mentioned (supposing it to con-
tain terms concluded upon, and agreed to by Mr. McCredy) would
be evidence of a contract between the plaintiffs and the defendant
alone, and with which Mr. Fey had no connection. I mention this
merely to show more clearly that, although the acceptance and this
stipulation of the plaintiffs are written on the same paper, and con-
nected in fact by the words " and we have further agreed," yet for
their substance they are really as distinct as if they had been written
on different papers, and at different times.

The defendant contends that this clause, or stipulation as I have
called it, was a mere proffer, or offer of the plaintiffs to sell the lard
upon the terms mentioned, if the defendant should not choose to
take it away upon delivery to him under the acceptance. It is not
for me to decide whether it was so or not. If Mr. McCredy had
made himself a party to that clause of the paper, by introducing
words signifying that he too had agreed that the plaintiffs should
sell, &c., and then had signed it, clearly it would be much more than
a proffer it would be a bargain made and concluded between the
parties. It was not necessary, however, that Mr. McCredy should
have assented to it in writing, or have signed it, in order to make
such a contract with the plaintiffs. And I shall refer it to you, to
say, from the evidence in the case, whether or not it was a mere
proffer on the part of the plaintiffs, or whether there was actually
a bargain made between the plaintiffs and defendant, and the plain-
tiffs' part or side of the bargain only put into this writing. But
assuming, for the present, that a bargain was made between the
parties, on the 7th of February, upon the terms expressed in this
paper, (viz., that the plaintiffs should sell the lard for account of
the defendant, and that defendant should pay four per cent, com-
mission and guaranty, including the commissions for accepting,



1841.] OF PENNSYLVANIA. 558

[McCredy v. James.]
and put the plaintiffs in *funds to meet the drafts when



due.) I say, assuming that the parties mutually agreed and
bound themselves by these terms, the question is what is the legal
effect of it? You observe that the order of Mr. Fey contemplated
an actual delivery of the lard to Mr. McCredy. The acceptance
followed the order, and as I have already said, was virtually an
agreement to deliver it according to the terms of this order. But
this stipulation of the plaintiffs to sell, (if it was agreed to by the
defendant, so as to become a bargain between them), proceeds upon
the idea that the lard was to remain in the plaintiffs' possession to
sell. Now the legal effect of such an agreement as this, coming in
on the heel of the acceptance, would be to dispense with an actual
delivery of the lard in pursuance of the acceptance of the order,
or it would be the same as if the defendant had presented himself
to receive the lard, and the plaintiffs had actually delivered it to
him, and then the defendant had re-delivered the lard to the plain-
tiffs to sell ' for his account. Or we may say that the legal effect
of such an agreement between the parties, made under such cir-
cumstances, would be to invest the lard with a new ownership on
its coming into the possession of the plaintiffs. They would re-



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 63 of 75)