1821. Willinks V. Hollingsworth. good charter for Batavia, and if what you know to be a good charter is obtained, you will of course accept it in preference to any thing else. "And if a good freight cannot be had to Batavia, and the ship can be sold for 8,000 pounds sterling, you have orders to sell her, and we confidently expect that she will bring more, as she cost upwards of 14,000 pounds sterling, and never made one voyage. I hope that every exertion will be made to proceed to St. Petersburg immediately, if you do not go to Batavia, and the ship cannot be sold; as the season is far advanced, no time must be lost. The same industry must be used to get away from St. Petersburg, for fear that you might be detained there all the winter. The owners must also depend on your attention at St. Petersburg, that the hemp is good that you receive." The letter then gives instructions respecting pilots, protests, &c., and then adds, "Messrs. Willinks will of course endeavour to consign the ship to a friend of theirs at St. Petersburg, but we have great confidence in a house recommended by Mr. Cumberland D. Williams, Messrs. Meyer and Buxner, and we could wish you to consign the ship to them. If any freight should offer from St. Petersburg to Baltimore, of course, you will accept of it, and if any goods for Philadelphia or NewYork should be there, you can inform the shippers how easy they may be sent," &c. It was also proved, that no freight to Batavia could be obtained, and that the vessel could not be sold at the price limited. 1821. Willinks V. Hollings worth. Mr. Harper and Mr. Winder, for the plaintiffs, argued, (1.) That the present action could be maintained by the plaintiffs for the monies advanced by them at Amsterdam, for the purchase of the return cargo received by the defendants at Baltimore. February 23d. Even supposing that the defendants might have refused to receive it, yet having actually sold it, and received the proceeds of the sale, this raises an assumpsit to pay the money thus received. In the case of Manella v. Barry," foreign merchants, sent by their general agent, written orders to their factor in this country, to purchase goods here upon their account, but to ship the goods in the name of the factor, and by those orders the factor was referred to the verbal communications of the general agent, who undertook to order the goods to be shipped in the name of another person, and declared that he had authority from the foreign merchants thus to control and vary their orders; the factor was held to be justified in obeying the new orders of the general agent, though contrary to the first written orders. So, here the consignment of the ship to the plaintiffs was limited to her transactions at Amsterdam, and the control of her ulterior movements was left to the master. The learned counsel here entered into a minute examination of the correspondence, to show that this was its import. 12. The defendants cannot claim a deduction from the plaintiffs' demand of the amount of the supposed loss sustained by the alteration of the intended des a 3 Cranch, 415. 1821. Willinks V. Hollings worth. tination of the vessel to St. Petersburg, and the loading her at Amsterdam. This question depends not on the English statute of set-off, but on the act of Assembly of Maryland, of November, 1785, c. 46. s. 7. This act provides, "That in case any suit shall hereafter be brought on any judgment, or on any bond, or other writing sealed by the party, and the defendants shall have any demand or claim against the plaintiff, upon judgment, bond, or other instrument under seal, or upon note, agreement, assumpsit, or account proved, as by this act is allowed the defendant, or otherwise according to law, shall be at liberty to file his account in bar, or plead discount to the plaintiff's claim, and judgment shall be given for the plaintiff for the sum only which remains due after just discount made; provided the sum which shall remain due after such discount be sufficient to support a judgment in the court where the cause may be tried, according to its established jurisdiction; and in all cases of suits upon simple contracts, the defendant may file an account in bar, or plead discount of any claim he may have against the plaintiff, proved as aforesaid, or otherwise proved according to law, which may be of an equal or superior nature to the plaintiff's claim, and judgment shall be given as aforesaid." Unliquidated damages cannot be admitted by way of discount, according to the very letter of the law, and the uniform decisions of the local Courts of Maryland. But even the English statute has received the same construction." Damages for a Montagu on Set-Off, 21. and the authorities there cited. a breach of the implied contract of an agent are, and necessarily must be, unliquidated. If then such damages cannot be set off under the statute, neither can they be admitted incidentally, by way of deduction, upon the equitable principles of an action for money had and received. It would be an evasion of the law to permit such an equitable deduction, which sounds rather in tort than contract. The policy of the law is to prevent two distinct issues, involving controverted questions, from being tried at the same time, thus confounding the simplicity of actions and of proceedings in a Court of law. Mr. Pinkney and Mr. D. B. Ogden, contra, (1.) insisted, that the action could not be maintained by the plaintiffs, there having been a manifest breach of instructions on their part, not justified by the pretended approbation of the master. (2.) The defendants have a right to a deduction for the loss sustained by them in breaking up the intended voyage to St. Petersburg. No part of the money, for which the action is brought, can be said to be received to the use of the plaintiffs, which, by the very nature of their claim, ought in conscience to be applied to the indemnity of the defendants against the breach of contract which originated the plaintiffs' demand. The claim of the plaintiffs arises from a breach of their duty to the defendants. That breach of duty forced the money in question into the hands of the Brown v. Cuming, 2 Caines' Rep. 33. and Note (a). Winchester v. Hackley, 2 Cranch, 341. 1821. Willinks V. Hollings worth. 1821. Willinks V. Hollings worth. defendants. If the plaintiffs should obtain a judgment for the whole of this money, it cannot be doubted that Chancery would enjoin execution until the extent of the injury inflicted upon the defendants by the acts which produced the judgment could be ascertained by a jury. And surely in this action for money had and received, a Court of law will proceed with the same view, if the existence of the defendants' right to complain is ascertainable (although the exact quantum of the injury is not) by the same evidence, and through the same circumstances, which properly belong to the case of the plaintiffs. The acknowledged nature of the action for money had and received, will otherwise cease, and it will differ in nothing from any other form of action. If we are not to inquire in this action, how, and under what circumstances money was received, in order that we may determine whether, ex æquo et bono, the defendants may retain the whole, or any part of it; and if nothing can prevent a recovery of the whole, but a plea of discount, or a notice of set-off, or such other defence as in ordinary actions may be competent, the character given in the books of the action for money had and received, is a perfect delusion. The case of Dale v. Sollet, goes the whole length of this doctrine. The deduction there claimed might, perhaps, have been used as a discount or set-off under the statute; although as the claim was not a liquidated one, it probably could not; but at any rate it was not so used, and consequently, as a discount or set a 4 Burr. 2133. |