U.S. Supreme Court Manella, Pujals & Company v. Barry, 7 U.S. 3 Cranch 415 415 (1806)
Manella, Pujals & Company v. Barry
7 U.S. (3 Cranch) 415
ERROR TO THE CIRCUIT COURT OF THE UNITED
STATES FOR THE DISTRICT OF MARYLAND
If foreign merchants send out, by their general agent, written orders to their factor in this country to purchase tobacco upon their account, but to ship it in the name of the factor, and by those orders the factor is referred to the verbal communications of the general agent, who undertakes to order the tobacco to be shipped in the name of another person and declares he has authority from the foreign merchants thus to control and vary their orders, the factor is justified in obeying the new orders of the general agent, though contrary to the first written orders.
An agent is bound to pursue the orders of his principal, and is answerable for any injury consequent on his departing from them, however fair may have been his motives for such departure.
The action was brought by the plaintiffs in error to recover from the defendant Barry the price of three cargoes of tobacco purchased and shipped by Barry for account of the plaintiffs, but which were captured on their way to Spain and condemned. The ground of the claim was that Barry had not strictly pursued his instructions as to the shipments.
The transcript of the record contained two bills of exceptions.
In the first bill of exceptions, all the material facts of the case were stated, but the exception was taken only to the opinion of the court, which refused to suffer a witness to be sworn to the jury to prove what was the true translation of a certain part of the Spanish instructions, as to which the parties differed, although the plaintiffs and defendant consented that the witness should be so sworn. This opinion, it is understood, was founded upon the idea that the court, and not the jury, was the proper tribunal to decide the meaning and construction of all written evidence.
The facts stated in the first bill of exceptions, and which were referred to in the second, presented the following case:
On 27 January, 1798, Bernardo Lacosta, of Cadiz, in Spain, for and on behalf of the plaintiffs, who were also Spanish subjects, wrote and transmitted to the defendant by the hands of Juan Alonzo Menendez Conde, a letter in the Spanish language, the following translation of which, purporting to be made by a sworn translator, was read in evidence to the jury:
"Cadiz, 27 January, 1798"
"To Mr. James Barry, Baltimore."
"My most esteemed friend,"
"I derive a particular satisfaction in introducing to you the bearer of this letter, Mr. Juan Alonzo Menendez Conde, who goes to Baltimore as agent of the house of Messrs. Manella, Pujals & Co. of this place, principally interested in the importation of tobacco for this kingdom. The confidence I have always had in you and the friendship you have on all occasions manifested for me warrant the conclusion that you will view this measure as your own, and will execute it with your wonted zeal and efficacy. Being an undertaking of considerable magnitude, a proportional degree of economy should be observed in the purchases, the shipments and the reimbursements, because the least neglect may cause an enormous loss. By the last accounts from America, I find that tobacco has risen to a great price, but I hope this was only momentary. However, upon a reasonable calculation, it will not answer them at more than $10 per quintal in America; these are the limits to which they can go without exposing themselves to too much loss. You will, however, consult the bearer, Mr. Menendez, or he with you, and in case you should determine on an advance of one-fourth or one-half a dollar more to prevent delay, you may do so if you think proper, being fully convinced if you can do it for less that you will omit nothing that may advance the interest of my friends. With this, the said Mr. Menendez takes an order for twenty thousand quintals to be shipped for this place in seven or eight vessels, and not less than six, under which condition the insurance will be made here. You will take care to seek captains of fidelity, American born, and that all the crews be strictly agreeable to law."
"For the greater perspicuity the shipments will be made in the following manner: "
"1. You will lade the vessels in your own name, stating that they are on your own account and risk as an American citizen, and consign them to this place, alternately to me, to Messrs. Gahn & Company, and to Messrs. Pablo, Greppi, Marliani & Company. "
"2. Your letter, by the vessel, will state that the consignment is made on your account; that you order her to Cadiz, where you hope that the consignees may be able to sell, but that if the government should not permit the sale or the English prevent her entry, that then the vessel is to proceed to Genoa."
"3. That the captain carry no other letters than those relating to the cargo, but he must have one for Charles Longhy, of Genoa, to whom the consignment will be made in the supposed case of not being suffered to enter this port or be permitted to sell here."
"4. Should the captain be prevented entering here, he will put into the nearest Spanish port to this and send an express to the consignee."
"5. The captain will bring the charter party, and the letter to cover the shipment; that, as well as the bill of lading, should specify two freights, one for Cadiz and the other as though the vessel was in fact destined for Genoa."
"6. In the invoice by the vessel, you will insert all the charges except the commission, which is understood shall be five percent, to be hereafter added."
"7. By the way of England you will transmit the true invoices, adding thereto your commission."
"8. Great care should be taken, in the role d'equipage, as to the birth, age, size, &c.;, of the seamen, and that it agree in date and number with the shipping articles."
"9. Admitting that the vessel cannot enter here, there must not be any excess of freight on her going to another Spanish port; but this condition must be confidential with the captain, and must not appear in any document."
"10. The vessels should have Mediterranean passes, and, in a word, all other necessary documents, that we may have no difficulties with the privateers there, and if you could have the papers examined by the French,
English, and Spanish consuls in your country, it appears to me it might serve as a great protection."
"11. The bills of lading will be remitted by triplicates by the way of London or Lisbon to Messrs. Pablo, Greppi, Marliani & Co. of this place."
"As to your reimbursements, you may draw as follows, to-wit: $80,000 on Don Juan de la Chappeaurouge and Urgulla, of Hamburgh; $40,000 on John Gore & Co. of London; $40,000 on Lorla & Co. of Amsterdam; $40,000 on A. E. & I. E. Metzeuca & Koosen, of Lisbon, $200,000, which sum you will dispose of according to your wants, advising the persons on whom you draw that it is on account of and by order of Messrs. Pablo, Greppi, Marliani & Co. You will take special care to avoid drawing too large a sum at once, and that the bills on those places be at ninety days' sight, it being always understood that in case you are able to negotiate upon Spain, you will draw on that country in preference on Manella, Pujals & Co. of this place, and at 60 days' sight, and then you will specify whether it is to be paid in cash or in vales reales. Although I have already mentioned that the insurance should be made here, yet you will make that charge in the invoice sent as though it had been effected by you. I refer you to the verbal communications of the bearer on this subject, who is sent on purpose to superintend the shipments, and you will, upon the whole, act for the advantage of the interested, taking care to keep this business a secret in order to prevent a rise in your market, and its being known that it is for foreigners, but always that it is on your own account as an American citizen."
"You will determine the quality of the tobacco to be shipped with the said Mr. Menendez. It should be well assorted, very sound and dry, though it does not appear necessary that it should be all of the best quality."
"In order to avoid every unforeseen accident, in case any of the said houses should not accept the drafts above mentioned, which I do not apprehend, you will point out to the holders to present them to Messrs. Greppi, Marliani & Co., who will accept and domicilee
them with our friends of the same place, as has been agreed on, and the said Messrs. Greppi have written to this effect to their correspondents. But we all flatter ourselves that this case will not occur."
"I remain, as always, your affectionate friend,"
This letter was delivered by Menendez on 22 March, 1798, to the defendant, who, in pursuance thereof, purchased 1,528 hogsheads of tobacco, containing, in the whole, 1,838,393 lbs. and amounting, exclusive of charges, to the sum of $180,824.77, and including charges, other than freight, insurance and commissions, to the sum of $204,077.77. This tobacco was shipped in the following manner:
On 28 April, 1798, 62 hogsheads, amounting, with costs and charges, to $8,846.36, by the Moorish brig Muqueni, regularly documented as a Moorish vessel and navigated by subjects of the Emperor of Morocco, shipped for account and risk of the defendant, a citizen of the United States, and consigned to Messrs. Gahn & Co. at Cadiz.
On 18 May, 1798, 270 hogsheads, amounting to $27,868.35, by the brig Minerva, a Danish vessel, regularly documented as such, navigated by Danish subjects, shipped for account and risk of the defendant, a citizen of the United States and consigned to Messrs. Pablo, Greppi, Marliani & Co. at Cadiz.
On 26 May, 1798, 500 hogsheads, amounting to $60,914.56, by the ship Polly and Nancy, an American vessel, regularly documented as such and navigated by citizens of the United States, shipped for account and risk of the defendant, a citizen of the United States, and consigned to Bernardo Lacosta at Cadiz.
On 10 July, 1798, 100 hogsheads, amounting to $13,876.48, by the schooner Felicity, an American vessel, regularly documented as such and navigated by American citizens for account and risk of Don Carlos Longhy, of Genoa, and consigned to Messrs. Gahn & Co. at Cadiz.
On 23 July, 1798, 117 hogsheads, amounting to $17,269.77, by the brig Susanna, an American vessel, regularly documented and navigated by citizens of the United States for account and risk of Don Carlos Longhy, of Genoa, and consigned to Messrs. Pablo, Greppi, Marliani & Co. at Cadiz.
On 16 August, 1798, 288 hogsheads, amounting to $43,064.54, by the ship Henrietta, an American vessel, regularly documented and navigated by citizens of the United States for the account and risk of Don Carlos Longhy, of Genoa, and consigned to Bernardo Lacosta, at Cadiz.
And on 8 November, 1798, 191 hogsheads by the brig Fly, an American vessel, regularly documented and navigated by citizens of the United States for account and risk of the defendant, a citizen of the United States, and consigned to Bernardo Lacosta at Cadiz.
The Moorish brig Muqueni was captured by the British and condemned at Gibraltar, together with her cargo, as enemy's property.
The Danish brig Minerva was captured by the French, and, together with her cargo, condemned as good prize by a French consul at Malaga, in Spain.
The ship Henrietta was captured by the British, and, with her cargo, condemned at Halifax as enemy's property.
The other four vessels arrived safe, and their cargoes were received by the plaintiffs and applied to their own use and profit. The bills drawn by the defendant, to the amount of $204,073.72,
were duly paid, and the proceeds came to the hands of the defendant and were applied to the purchases of the tobacco.
The cost and charges of the tobacco which arrived safe exceeded the sum to which it would have amounted at $10 per quintal by the sum of $5,478.27.
The defendant produced the letters of Menendez, of which the following are translated extracts:
"City Washington, 28 May, 1798"
"Mr. James Barry, Baltimore -- Esteemed Sir, by your favor of 27th instant, I am informed relative to the purchases of tobacco, and the affreightments entered into for its shipment, all of which you have executed with that zeal and efficacy which you are accustomed to, and I therefore approve of the exactitude of your operations. At same time, I flatter myself that you will continue successively with equal activity until the total compliance of 20,000 quintals ordered, and you may rest assured as to my particular errand that the payments shall be realized in London."
"Washington, 29 May, 1798"
"Under date of yesterday I wrote you a letter approving of all your operations relative to the tobacco purchases and affreightment for its shipment. The contents thereof I now confirm, you having done everything to my entire satisfaction and as I would have expected from your exactitude and zeal. On the score of placing the funds in London, you may rest satisfied, because you well know that this is the principal object which has compelled me to go to Spain. I hope that in the next order we shall be able to effect the purchases to more advantage and with less trouble. "
"Capes of Virginia, on board the ship Polly and Nancy, 14 June, 1798"
"The 4th instant we sailed from Alexandria, and ever since have we been in the river, detained by calms and contrary winds, which has made me very impatient."
"By the last accounts which I have observed in the newspapers, I am persuaded that war is as much as declared between the United States and France. This novelty troubles me much, for which reason, if it be agreeable to you and equally convenient to have the future shipments made on Danish or Swedish flags, and in the name of Charles Longhy of Genoa, you acting as his agent, you may do it so by declaring in the bills of lading and invoices that the cargoes are for the account and risk of said Longhy and by giving letters to the said captains for Messrs. Greppi, Lacosta, or Gahn, of Cadiz, of the following tenor: "
" Gentlemen, in virtue of orders I have received from Mr. Charles Longhy, of Genoa to remit him a cargo of tobacco on his proper account and risk, I have loaded in the ship _____, captain _____, [so many] hogsheads of tobacco, and I have given orders to said captain to touch at your port (if not blockaded) and to call upon you with a view to get permission from your government to sell a parcel; should the captain succeed in entering your port, and that you can obtain leave to dispose of the whole or part of his cargo, you will please to do so for the best advantage of the said Mr. Longhy, remitting him the proceeds to Genoa. And in case that you cannot obtain a sale, you will please to direct the captain to proceed on to the said port of Genoa, supplying him with the means therefor. . . ."
"In this way it will be proper for you to charge your commission in the invoice. I contemplate that by making the further shipments in this mode, the property will go with more security, said Longhy being a neutral subject, and should the vessel be met by French cruisers,
the cargoes would go secure, as the property would not appear to be American. I also believe that nothing of this would affect the insurances, and at all events it is best because the insurances will be done on neutral ships and neutral property, so that the property also sounds as neutral. Should you, since my departure from Baltimore, have chartered any American vessel, you can make the shipment in the same way, because, in case a French cruiser should capture the vessel, the cargo may be saved on account of its not appearing to be American property, so that the only thing subject to condemnation in that case will be the vessel and her freight, whereas if the property goes in your name, both vessel and cargo will be condemned if under American colors; but if on a Danish or Swedish vessel, then the cargo only would be condemned. Therefore whenever you can meet a Danish or Swedish vessel, and by making the shipment as for account of Longhy, the neutral subject, there can be no risk. Therefore it appears to me very proper and consistent, in order to obviate these risks in every case that the further shipments do not sound in your name, but in that of said Longhy, or if not, in that of Messrs. Gahn & Co. of Cadiz, or of Mr. Gould, your brother-in-law, provided the French and the Portuguese come to a good understanding, which I am informed is the case, and that matters have been accommodated between them."
"Finally, you know better than I do the critical circumstances of the day, and for this reason I am satisfied you will be attentive in making choice of the mode which may be best calculated to save any shipment you may make. I can only say that of this vessel I have much fear and apprehension, notwithstanding she sails fast."
"In case you should act conformably to what I have here mentioned as to further shipments, I, from this moment, approve thereof, and that it may appear, and to save you from any accident that may occur, as also to prove that such has been with my knowledge and approbation, you are to keep this letter in your possession in order that at no time whatever you should be chargeable with the consequences. "
"You will encharge the captains to wait the opportunity of a fresh N.W. wind, in order the sooner to get clear of the coast, and the danger of cruisers, the same we had in view. You will also direct them to make for the first port of Spain, be it which it may, as the great object is to save the cargoes."
This letter was received by the defendant before the shipment by the Henrietta was made.
On the same 14 June, 1798, Menendez wrote a letter also to Robert Barry, the nephew, and principal clerk and assistant of the defendant in his business, of which the following are translated extracts:
"By what I wrote your uncle under this same date, you will be informed of all that I have recommended. In addition to which I shall mention to you that you will perceive in the copy of the private instructions what I am directed to do on the score of the tobacco shipments, and you will see in one article thereof that I am expressly ordered to make the shipments in neutral vessels, and that the property shall appear as that of the neutral subject. In the present day it may be said that war is declared between these states and the French Republic, for which reason we may view the thing in a different light."
"When you make up the general invoice, you will recollect to charge in that which you are to forward to Bernardo Lacosta, two and a half per quintal of tobacco over and above the real costs and charges, adding a note to the bottom thereof that you do not charge insurance, nor loss on the reimbursements, such being to be done in Europe, and that you do not know to what amount they may ascend. The general invoice containing the real costs and charges you will remit to Mr. Joseph Anthony de Sola, administrator general of the King's tobacco stores at Cadiz, or directed in my name, which letter for me will always come to the hands of said Sola. You already know that the other fictitious invoice is intended to be exhibited at Madrid, but that no other person shall know anything of the other that is to contain the real cost and charges, by which only we the concerned
are to be governed. The invoice you are to remit to Bernardo Lacosta, in which the two and a half per quintal is to be overcharged, is also to be delivered to Joseph Anthony de Sola, which you will remind him of."
This last letter was received by Robert Barry within a few days after its date and before the shipment by the Henrietta, and was by him delivered to the defendant.
It was also proved that Menendez, on his first arrival at Baltimore, declared to the defendant that he had private instructions not contained or specified in the said letter of 27 January, 1798, and that those private instructions authorized, among other things, a shipment of the tobacco to be purchased in neutral vessels generally, without confining the same to American vessels. That Robert Barry saw in the possession of Menendez, soon after his arrival in Baltimore, a written paper in the Spanish language purporting and declared by Menendez to be a paper containing such private instructions. That Menendez read a part of them to Robert Barry, who looked at the paper at the same time and saw that he read correctly and that what he read was of the purport aforesaid.
That at the time of taking up the Moorish brig and Danish barque, the defendant found it impossible to procure suitable American vessels. That Menendez knew of and approved the shipments in the Moorish brig and Danish barque at the time they were made. That the defendant constantly communicated with Menendez during his stay in Baltimore on the subject of the said purchases and shipments, and therein acted with his entire approbation and concurrence. That Menendez urged the necessity of making the shipments of the tobacco speedily, even if the price should be greater than $10 per quintal, calculating, as he said, that if the tobacco should arrive in Spain at $15, the concern would clear $100,000, and that for his share or interest therein, which was one-tenth, he should clear $10,000. That the aggregate of all the purchases of tobacco, excluding insurance, freight, and commissions,
did not exceed ten and a half dollars per quintal, and that Menendez approved the prices at which they were made.
That Danish and Moorish vessels were neutral vessels, and that the tobacco was really shipped for the actual account and risk of the plaintiffs.
Whereupon, says the first bill of exceptions,
"the plaintiffs, by their counsel, offered to swear a witness to prove to the jury that the said paper, at first read, in evidence to the jury by them as a true translation of the said letter of 27 January, 1798, is not a correct translation of the said letter, in that part of it which is contained in the following words, 'para presentiar la expedicion,' and that the true construction of the said words is 'to be present at, or assist in, the shipments,' and not 'to superintend the shipments,' as in the said paper is stated, to the swearing which witness for the purpose aforesaid the defendant, by his counsel, consented, but the court would not admit such evidence to be given to the jury on the trial of such issue to determine the true import and legal construction of the said words."
To which opinion the counsel for the plaintiffs excepted.
The second bill of exceptions began as follows:
"And upon the aforegoing statement, prefixed to the first bill of exceptions in this case, the plaintiffs, by their counsel, prayed the directions of the court that if the jury believed the matters so offered and given in evidence by the plaintiffs, then the plaintiffs are entitled to recover on their action the amount of the price, costs, and charges of the tobacco shipped as aforesaid on board"
the Moorish brig Muqueni, the Danish brig Minerva, and the American ship Henrietta, and also the sum of $5,478.27, being the excess in the price, costs, and charges of the four cargoes shipped by the defendant and received by the plaintiffs as aforesaid, over and above the price limited by the letter of 27 January, 1798.
"But the court was of opinion and did direct the jury that by that letter, the defendant was authorized to make the shipments of tobacco on board of other than American vessels or
vessels belonging to citizens of the United States, agreeably to the laws thereof, and that the shipment of the tobacco in the Moorish and Danish vessels, as stated in this bill of exceptions (the said vessels being admitted to be neutral vessels as aforesaid), was not in violation of the instructions in the said letter, and that the plaintiffs have not sustained the present action for the recovery of damages for such shipments on the said Danish and Moorish vessels against the said defendant. And the court was also of opinion, and did accordingly direct the jury, that by the said letter of instructions, the defendant was authorized to make the shipment of tobacco in the ship Henrietta, as above stated in this bill of exceptions, and to consign the said tobacco for the account and risk of the said Don Carlos Longhy, as stated in the said bill of exceptions. And the court was also of opinion and did direct the jury that if the defendant had not such discretion by the said letter, yet if the jury believe that the said several shipments of tobacco on board the said Moorish and Danish vessels and the said American ship Henrietta were made as hereinbefore stated by the direction and with the approbation of the said Menendez or were afterwards ratified by him as agent of the plaintiffs as hereinbefore stated, the plaintiffs have not sustained their present action for the recovery of damages for such shipments. And the court was of opinion and directed the jury that the evidence was sufficient in law to establish that the said shipments were made by the direction of the said Menendez as agent of the plaintiffs and were also ratified and confirmed by him as agent as aforesaid. And the court was also of opinion and directed the jury that the price of ten and a half dollars for each quintal of tobacco, limited by the said letter of 27 January, 1798, for the purchase of tobacco by the defendant, was the price that the defendant might give in America, exclusive of charges of every kind, and that as the price of the said tobacco, shipped by the defendant, did not average so much as ten and a half dollars per quintal, the plaintiffs have not sustained the present action to recover damages for the excess of price given including charges."
To which several opinions the plaintiffs excepted.
The verdict and judgment were for the defendant, and the plaintiffs brought their writ of error into this Court.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.
The Court has endeavored to bestow on this cause the attention to which it is alike entitled by its own importance, by the situation of one of the parties, who is a stranger to our language and our laws, and by the ability and zeal with which it has been argued at the bar.
The action claims from the defendant the value of three cargoes of tobacco purchased by him as the agent of the plaintiffs, which were captured on a voyage to Europe and condemned as prize. The foundation of the claim is that he deviated from the instructions which were given for the government of his conduct, and is therefore liable for the loss which has been sustained.
That an agent is bound to pursue the orders of his principals and is answerable for any injury consequent on his departing from them, however fair may have been his motives for such departure, is a plain principle of law which has not been drawn into question, and the only inquiry in this case is has the defendant obeyed or deviated from his instructions? The circuit court was of opinion that they sanctioned his conduct, and it is the propriety of that opinion which is now to be reviewed in this Court.
It depends on the true construction of the letter of 27 January, 1798, written by Bernardo Lacosta on behalf of the plaintiffs, of which Juan Alonzo Menendez Conde was the bearer, and on the testimony which is stated in the bills of exceptions.
This letter introduces Menendez as the agent of the plaintiffs, who were principally concerned in the importation of tobacco into Spain, and declares a confidence that the defendant will embrace the business as his own and execute it with his wonted attention.
After some general observations which relate to the proposed transaction and which seem to be founded on the idea that the defendant and Menendez are to be associated in the business, the letter becomes more definite. The writer says,
"with this the said Mr. Menendez takes an order for 20,000 quintals [of tobacco], to be shipped for this place in seven or eight vessels, and in not less than six, under which condition the insurance will be made here. You will take care to seek captains of fidelity, American born, and that all the crews conform to the most rigorous ordinances. For greater clearness the shipments [las expediciones] will be made according to the following formalities: 1st. You will lade the vessels in your own name, stating that they are on your own account and risk as an American citizen, and consign them. . . ."
This instruction is followed by ten others which seem principally designed to conceal the real character of the cargoes and to facilitate their escape from cruisers.
At the close of these instructions, the following words are added:
"I refer you to that which the bearer will communicate to you verbally respecting this business, who is sent on purpose to superintend the shipment (vasolo para presenciar la expedicion), and you will, upon the whole, act for the advantage of the interested, taking care to keep this business a secret in order to prevent a rise in your market and its being known that it is for foreigners, but always that it is on your own account as an American citizen."
In the execution of this commission, the defendant shipped two cargoes, the one on board a Danish and the other on board a Moorish vessel, each of which was captured and condemned as prize, the one by the French and the other by the English.
These shipments were made with the full approbation of Menendez, and it is in proof that American vessels were not at the time to be procured.
Before the order was completed, the government of the United States adopted such measures for repelling the hostile aggressions of France as to justify an opinion that open and declared war between the two nations would soon take place. Under the impression of these measures, Mr. Menendez considered the American name as no longer affording a neutral character to the cargo, and directed it to be shipped on account and risk of Charles Longhy, of Genoa, who was a correspondent of the plaintiffs. These instructions were complied with.
The tobacco so shipped, which came safe, was received without complaint; but a large quantity, shipped in the Henrietta, was captured by a British cruiser, carried into Halifax, and there condemned as prize.
For the price of these three cargoes this action is brought. The inquiry respecting the two first will rest both on the instructions given to the defendant, and on the power of Menendez; that respecting the last, rests solely on the power of Menendez.
It is alleged that the orders under which the defendant acted enjoined him to employ only American vessels, and that in employing those of other neutral powers, he violated these orders. But there is certainly not one syllable in the letter which contains any instruction to the defendant relative to the employment of vessels or which confines the transportation of the tobacco to be purchased, to American vessels. The Court thinks it a fair construction of the letter, that full powers in this respect were confided to Menendez, and that Barry might counsel with him, but was to comply with his directions. Menendez is declared to be the agent of the plaintiffs, and the full extent of this term is not limited in any part of the letter. He brings with him an order for 20,000 quintals, to be shipped in six, seven, or eight vessels, under which condition the insurance is to be made in Spain.
These are not instructions to Barry; they are communications to him of the instructions given to Menendez, so far as was necessary for his understanding the views of the plaintiffs, and facilitating those views, under the authority of Menendez. The order, of which Menendez was the bearer, was for himself, and the degree of aid expected from Barry is described in the letter. Barry might have been unable, or unwilling to undertake the business. In any event of that kind, the enterprise was not, certainly, at an end, but Menendez might obtain other assistance. From the nature of the case, therefore, as well as from the expression of the letter, the order was in the possession and power of Menendez, the agent, to whom directions relative to the shipment of the tobacco, in a certain number of vessels, had been given, and who is declared to have been sent to America, for the purpose of superintending those shipments. Having made this explanation of the business confided to Menendez, the letter adds, "you will take care to seek captains of fidelity, American born," &c.; Those inquiries, Barry, an American merchant, could make much more successfully than Menendez, a foreigner, and therefore was directed to make them. But respecting the character of the vessel to be employed, no agency on the part of Barry was necessary further than to comply with such directions as he might receive, and no directions respecting the vessels to be employed were given him, because those directions were given to Menendez. The instructions to Barry to seek for American captains are founded not upon instructions to employ American vessels, which were given to him, for none such were given, but upon the instructions which were given to Menendez. They are founded on the idea that American vessels would be employed; but as circumstances might render the employment of them ineligible, it was reasonable to suppose that some discretion would be allowed to Menendez in this respect; accordingly, the private instructions, as stated in the bill of exceptions, only directed him to employ neutral vessels.
The idea that the power on this subject was completely in Menendez, and not in Barry, is confirmed, by observing that in the extended and minute rules, which are, for greater clearness, laid down for his government respecting the transportation of the tobacco, not one syllable
is said concerning the character of the vessels in which it was to be shipped, a direction which would certainly not have been omitted, had the subject not been confided to the general agent. It is also apparent from the letters in the bill of exceptions that the subject was so understood by both Menendez and Barry. When to these circumstances it is added, that American vessels were sought for at the time, and could not be obtained, it seems to the court perfectly clear, that with respect to the tobacco shipped in the Moorish and Danish vessels, the conduct of the defendant being sanctioned by Menendez was free from all exception.
The claim for the cargo of the Henrietta stands on stronger ground, because the defendant was explicitly instructed to lade the vessels in his own name, stating that the cargoes were shipped on his own account and risk. On this part of the case, the defendant must seek for a justification in the full powers of Menendez to vary the orders given to him. These orders have been said to be free from all obscurity, and in themselves they unquestionably are so. Barry could not have doubted the positiveness of his instructions to ship the tobacco as his own property. The defense he sets up is that he was justified in conforming to the directions of Menendez varying those instructions.
An examination of this defense leads to a still more critical investigation of the letter of 27 January.
It has been already observed that Menendez is stated in the letter introducing him to Barry to be the agent of the plaintiffs, and the bearer of their orders for the tobacco, which was to be purchased. As it was not unreasonable to expect that a person crossing the Atlantic in this character would have some discretionary power to change instructions with a change in circumstances, so as to be enabled to adapt his conduct to those circumstances, ready faith would be given to all expressions which would convey this idea, and if no such power was intended, no expressions ought to have been used which could excite and cherish the idea.
The rules stated to Mr. Barry as those by which his conduct would be governed are declared to relate to the
part he was expected to take in the "expedicion," which the Court translates transportation, or conveyance of the tobacco to Europe, one of these being that the tobacco was to be shipped in his own name, it follows that this part of the subject was included in the Spanish term "expedicion." All these rules conclude with a reference to verbal communications, to be made by the agent himself, who is expressly declared to go to the United States for the sole purpose of attending to this very part of the transaction, "va solo para presenciar la expedicion." This reference to the verbal communications of Menendez, unqualified by any restriction whatever, is a declaration of complete confidence, placed at least in his veracity, by the plaintiffs, and is a full authority given by them to Barry, to credit the representations which he should make. How else is it to be understood? What right could Barry have to say to those who had referred him to the verbal communications which their agent should make to him on a particular subject, that he did not believe those communications?
It is argued that although no limitation is expressed to the credit which Barry was to give to the representations of Menendez, yet it must be necessarily understood that he could not change those things which were expressly directed; that the verbal communications referred to were to be conformable to, not subversive of, the written instructions; that on the idea of a power to alter the written instructions, it was useless to give them, and was only necessary to send out Menendez with a full authority to govern the whole transaction.
But in the course of human affairs, it is not unusual for a principal to give, in detail, his ideas of the line of conduct to be observed by his agent, and yet to allow a departure from that line of conduct, under particular circumstances.
It would not have been extraordinary had these rules for the conduct of Barry been followed by a declaration that in a total change of circumstances, as in the event of America's becoming a belligerent, he was to ship the tobacco, not as American, but as neutral property. Had Barry been the sole agent, this right to exercise his discretion, if intended to be placed in him, would have
been mentioned in his letter. But Barry was neither the sole nor the principal agent. He was known to the plaintiffs only by recommendation, and while he was employed, because an American merchant could make the proposed purchases to greater advantage, and because an American name was required to cover the property. Menendez was the confidential agent, known to and trusted by the plaintiffs, who brought with him the order for the purchases, and came on purpose to attend to the conveyance of the tobacco to Europe. In the instructions to Menendez, therefore, would any discretion relative to the transportation of the tobacco be found, and it was enough that Barry was referred to his verbal communications.
The words which follow the reference to the verbal communications of Menendez, though not those which decide the opinion of the court, are not absolutely unimportant: they are, "and you will, upon the whole, act for the advantage of the parties interested." To what do these words "upon the whole" refer? Unquestionably to the verbal communications as well as to the written instructions. They were both to regulate the conduct of the defendant. The caution which follows these words is understood by the counsel for the plaintiffs to limit their extent, and to direct that in acting for the advantage of the interested, he was yet to keep secret that the tobacco belonged to foreigners.
There is unquestionably great force in this observation, and if the justification of Barry rested solely on the power given him in this clause to act for the best, it would be doubtful how far it would avail him. The Court, however, considers those words principally applying to the purchases, and as indicative of an expectation that a state of things would remain, in which the tobacco was to retain the character of American property, rather than as limiting the powers of Menendez over this part of the subject, in the event of such a revolution as would make America a belligerent. The Court forbears to make a critical examination of the words, because its opinion is formed on the character in which Menendez came to America, as stated in the letter introducing him to Barry. That letter warranted the belief that he was the principal
and confidential agent of the plaintiffs; that he had particular instructions for the government of his conduct, and that Barry was to receive and trust his verbal communications, especially on the subject of expediting the tobacco to Spain. It is impossible to read the letters from Menendez to Barry, which form a part of the bill of exceptions, without feeling a conviction that this was the understanding of the parties. He approves the conduct of the defendant, in the style of a man whose approbation gave a sanction to it, and when he directs the shipments to be made in the name of Charles Longhy, of Genoa, he says,
"If you act conformably to what I have here mentioned as to further shipments, I, from this moment, approve thereof, and that it may appear, and to save you from any accident that may occur, as also that such has been with my knowledge and approbation, you are to keep this letter in your possession, in order that at no time whatever, you should be chargeable with the consequences."
Such was the opinion which the confidential agent of the plaintiffs, in possession of their private instructions, entertained of his own powers.
He was not mistaken in their extent, at least, the defendant had no right to believe him mistaken. On his arrival, he declared to Barry that he was in possession of private instructions, distinct from those which were contained in the letter of 27 January. He produced those instructions. The chief clerk of Barry read so much of them as related to vessels, and they did not require that the shipments should be made in American, but in neutral vessels, and in the letter of Menendez to the chief clerk, dated 14 June, and accompanying that of the same date, addressed to the defendant, directing him to ship the tobacco as the property of Charles Longhy, of Genoa, he says, referring to a copy of his private instructions, "you will see that I am expressly ordered to make the shipments in neutral vessels, and that the property shall appear as that of a neutral subject." What right had he to suspect that the confidential agent of the plaintiffs, to whose verbal communications they referred him, had forged instructions which he produced as those of his principals?
The counsel for the plaintiffs question the existence of these private instructions and demand their production.
But how were they to be authenticated? Only by Menendez himself. Are not then their contents to be proved by the declarations of Menendez, by his stating them, and by the chief clerk of Barry, who read a part of them?
To the Court it appears that in such a case as this the proof respecting them is as ample and satisfactory as ought to be required.
After taking this extensive view of the case, of the powers of Menendez, and of the confidence the defendant was bound to repose in him, it only remains briefly to observe that the directions he gave were not such as to awaken suspicion.
On 14 June, 1798, when these instructions were given, America had ceased to be a neutral power. War, it is true, was not formally declared, but it had commenced in fact, and hostilities were authorized by that department of the government which is invested with the power of making war. In such a state of things, the course which prudence would have dictated to the plaintiffs had they been themselves in the United States, certainly was to cover the tobacco as neutral, not as American property, and when their agent, possessing private instructions, directed the property to be shipped as neutral, not as American, the defendant would have been culpable in thwarting him.
It is scarcely necessary to add that Menendez stated himself to be, and probably was, something more than an agent. He declared himself to be interested in the cargoes. This declaration, under all the circumstances of the case, was not to be discredited. Upon that, however, the judgment of the Court is not founded. The letter of 27 January represented him as the principal and confidential agent of the plaintiffs, whose verbal communications were to be trusted. He declared himself to possess particular instructions respecting a transaction which he came to superintend, and under those instructions he gave orders which the defendant has obeyed. The Court is of opinion that in so doing, the defendant is justifiable, and no error has been committed in the court below in so instructing the jury.
Upon the other part of the exceptions, the price given for the tobacco, it is unnecessary to say more than that there is no error in the opinion of the court.