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Kirkpatrick v. Stainer. his meaning, their letters, if taken separately, might bear a different construction from what both would, if taken together. The only proper way in such a case, in giving a legal construction to the contract, is to take both letters together, without placing any particular reliance on either of them separately. It appears from the letters in this case that a verbal contract had been made between the parties, and that the object of this correspondence was to put it in writing. The plaintiff's letter is directed to Mr. E. Stainer, (the slefendant,) without describing him as agent. And no one from the reading of that letter, would hesitate a moment in saying it was the intention of the plaintiff to give credit to Stainer alone. He says: “ The whole quantity is to be shipped on joint account. For the one half which you take on your account, you are to pay me cash; are to advance me five-sixths of the value at the price of five and three-quarter cents per pound, (that is on the other half.) On this you are to charge me interest at the rate of six per cent. per annum from the time the funds are remitted from Trieste to meet the drafts on London for the same; also, the customary charge for the negotiation of drafts here ; say one per cent. and the brokerage in London. The coffee must be shipped as soon as possible for Trieste, to the care of your friends, Messrs. Dutilh, Ticky & Co., with orders for immediate sales and prompt remittances,” &c. And in relation to the insurance, which is the only subject of controversy here, he says: “You will also take care that insurance be effected, either here or in Europe, on the invoice amount, with ten per cent. additional, for probable gains.” In the answer of the defendant, written three days after, and signed with his own name “ Ed. Stainer” only, he says: "In reply to your esteemed lines of the 27th, I consent to the different points respecting the projected shipment to my friends, Messrs. Dutilh, Ticky & Co., in Trieste, of your 1499 bags of Rio coffee," &c. And although he, in the next paragraph of the letter, shoirs that it is to be shipped on the joint account of the plaintiff and Dutilh, Ticky & Co., he speaks in the first person throughout in reference to the payment of the money for

Kirkpatrick v. Stainer. their half of the advance of the five-sixths of the plaintiff's share, without the least intimation that he does not mean to hold himself responsible for the fulfilment of the contract. And in relation to the insurance, he says : 6. The insurance will be covered after your desire, with ten per cent. imaginary gain on the invoice cost, either here or in Europe, as I shall judge most convenient.” Taking both these letters together, therefore, and applying to this agreement the principle, that the credit is presumed to be given to the agent who contracts for the benefit of a foreign merchant, instead of the merchant himself, unless there is something in the terms of the agreement to show that was not the understanding of the parties, I think the defendant in error was personally liable for the fulfilment of his contract with the plaintiff.

The receiving of the amount which was placed to the plaintiff's credit with Brown, Brother & Co. was not an election by the plaintiff to relinquish his claim upon the defendant, and to look to the persons by whom that remittance was made, as it was a part of the defendant's original agreement that the money belonging to the plaintiff should be thus remitted to London for his use. And I have not been able to find any thing in the facts, as found by the referees, from which it could be inferred that the plaintiff had elected to look to Dutilh, Ticky & Co. as his debtors, or to relinquish his claim upon the party with whom the original contract was made.

For these reasons, I think the judgment of the supreme court should be reversed, and a judgment entered for the plaintiff, upon the report, for the balance as found due by the referees.

By Senator VERPLANCK. I concur with the supreme court in their understanding of this negotiation. Taking together the two letters of the parties on which the bargain was concluded, the defendant appears to have acted merely as the known agent of the house at Trieste, for and on account of whom he had made the advances, and to whom the goods were consigned. He contracted for the foreiga

Vol. XXII.

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Kirkpatrick v. Stainer. house and in their name, but made no undertaking for himself. This evidence of the correspondence is supported and confirmed by collateral proof of the general belief and understanding among New-York merchants, that the defendant was in business only as the agent of the foreign house. In such dealings, it is settled that the principals are alone responsible, unless there be some special circumstance to fix the responsibility upon the agent personally. I do not think that there is any such circumstance in this case ; although the fact of the defendant being an agent of a house abroad, added to the authority of Judge Story, the reasons he assigns, and the unqualified language he uses as to the liabilities of factors purchasing for foreign merchants, occasioned at first some doubt in my mind. In his late valuable work on agency, Judge Story says, “On the ground of general convenience and the usage of trade, the general rule obtains, that agents or factors, acting for merchants resident in foreign countries, are held personally liable upon all contracts made by them for their employers; and this, without any distinction whether they describe themselves in the contract as agents or not. In such cases it is presumed not only thai credit is given to such agents, but that it is exclusively given to them to the exoneration of their employers. Still the presumption is liable to be rebutted by proof, that the credit was given to both principal and agent or to the principal alone.” Story on Agency, § 268. See also the reasons assigned in the preceding section, and in $ 290. To the same effect a respectable recent English elementary writer speaks thus: “It seems that when a British agent contracts for a foreign principal, the agent is liable. Smith on Mercantile Law, p. 78. Now, if this be also the doctrine of our own commercial law, it may well be doubted whether the language of the correspondence, though showing Stainer “to describe himself in the contract as an agent,” is yet sufficient, even with the collateral evidence, (conclusive as the whole would be in the case of agent for a domestic principal,) to rebut such a positive legal presumption, and to prove that credit was given only to the Trieste house, so as to authorize the Kirkpatrick v. Stainer. court to pronounce on the facts submitted to them by the referees, " that the defendant was not personally liable upon the agreement.” But upon examining the several cases cited in support of this rule, I am satisfied that Judge Story has stated the doctrine in too strong and unqualified terms, as if this presumption were a universal inference of law, applicable every where. I think, on the contrary, that this is a presumption founded altogether upon usage and the particular course of trade, and arises only, when and where that usage is known or proved to exist; of course, then, that it is not an unvarying legal presumption, to be applied to any contract, made any where, by a factor or agent representing a person or commercial house in some foreign country.

Doubtless there may be such a local usage or understanding controlling all contracts of this sort amongst us, as there is certainly in London, and probably all over England. But unless it be so firmly settled and generally known that it inay be assumed without proof, like any other mercantile mode of business of common and public notoriety, such a usage must be shown before the consequent presumption of the agent's liability and the principal's exoneration can arise. I can find no judicial authority for considering this as a rule of general commercial law, independent of a particular course of trade, unless it be a very cautiously expressed dictum of Chief Justice, Eyre, giving his own individual opinion on the point, after the case in which it had been raised had been decided by the court upon a very different ground. He then added : “I am not aware that I have ever concurred in any decision in which it has been held that is a person describing himself as an agent for another residing abroad, enters into a contract here, he is not personally liable on that contract.” DeGaillon v. L'Aigle, i Bos. & Pull. 368. In the other cited cases the rule is placed on the ground I have stated. Thus, in Patterson v. Gandasequi, 15 East, 70, Judge Bailey says; “ There may be a particular course of dealing with respect to trade, in favor of a foreign principal, that he shall not be liable in cases where a home principal would be liable that would be a ques

Kirkpatrick v. Stainer. tion for the jury.” So again, some years after, in Thomson v. Davenport, 9 Barn. & Cress. 78, Lord Tenderden argues thus: “Where a British merchant is buying for a foreigner, according to the usual understanding of all per, song in trade, the credit is given to the British buyer, not to the foreigner. In this case the buyers lived at Dumfries, and a question might have been raised for the consideration of the jury, whether in consequence of their living at Dum, fries, it may not have been understood among all persons at Liverpool, that the plaintiff had given credit to the agent alone, and not to persons living in a country not amenable to the jurisdiction of our courts." Now, if this presumption rested not upon the known approved course of trade in the place, but upon a general principle of mercantile law, it is manifest that there would be no propriety in leaving it to the jury to consider whether it extended to principals living in Scotland or not; or what was “the understanding amongst all persons living at Liverpool.” Above all, Lord Tenterden decidedly recognizes " the usual understanding of all persons in trade," as in effect, the reason and author, ity for the presumption of credit being given to the British buyer, and not to the foreigner. The language of Judge Bayley, in the same case, is equally marked : “ There may be a course of trade by which the seller will be confined to the agent who is buying. Generally speaking, that is the case where an agent here buys for a house abroad. There may also have been evidence of a course of trade applicable to an agent acting for a firm resident in Scotland.” Here as late as 1829, this able and very experienced judge speaks of the usage on which the presumption is founded as a “course of trade which may exist.” He considers that course of trade alone as “confining the seller to the agent." He does not say that this course of trade holds universally with this effect: but “ that generally speaking, it is the case :" and he suggests that there may have been evidence before the jury of "such a course of trade applicable to dealings with Scotland.” The language and reasoning of this case admit, I think, no other inference than that both these eminent judges (of the highest authority in all com

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