Robert Lyle v. Isaac Clason; and Isaac Clason v. Robert and John Lyle, 1 Cole. & Cai. Cas. 233

Lewis, C. J. delivered the judgment of the court. These actions were referred under rules of court to three referees, who have reported in each against the respective plaintiffs, declaring nothing due on either side. Motions are now made to set aside the several awards. In the first cause, in which Lyle is plaintiff, the application is founded on a presumption that the referees have been mistaken in point of law.

That they have either rejected a contract entered into by the defendant’s ship-master and consignee, as not obligatory on his principal, or have set off the balances found for the plaintiffs, in the respective causes against each other. To this the defendant answers, that he was not bound by the engagement of his ship-master, who was also his consignee, and that if the referees have made such off-set, they were justified on principles of ’aw, and by an agreement entered into between the iespective attornies.

As far as the facts can be collected from affidavits and documents furnished the court, they are these : That the Lyles being engaged in business in France, were charged with some commercial concerns of Clason, on which he claims a balance of account, and on which they deny any thing to be due. That Robert Lyle, while in France, was employed by the house of Delard, Swan Ss? Co. there established in business to negotiate a contract, for the supply of certain quantities of pot and pearl-ashes to the French government, which he effected, and for which they were to allow him one-fifth of the profits.

That the com-pony, as well as Robert Lyle, wrote to Mr. Clason in March, 1794, acquainting him with their contract, and proposing to him to make shipments thereon. That in September, a vessel called the Joseph, belonging to the plaintiff, arrived in France loaded with ashes, consigned to Gideon Gardner, the master, who had general instructions to sell to the government, or to individuals, at his election. That Gardner, after making inquiries as to the government’s punctuality, agrees with Delard, Swan &?

Co. to turn in his cargo under their contract, which is accordingly done, and neats a profit of £6,800 11 8 sterling; whereof Clason received two-thirds in consideration of his having made the advances, and the house of Delard, Swan &? Co. one-third. On the adjustment of this account, it appears that the company and Clason were to account to Robert Lyle for his one-fifth, according to the proportions of profits by them respectively received.

Captain Gardner’s powers being discretionary, he was perfectly justifiable in making the disposition he did of the cargo entrusted to him, and even if he was not, it does not appear that Mr. Clason ever denied that transaction his sanction, but that on the contrary, he has received by remittances to Bird, Savage Bird, of London, the proceeds of the cargo, including his proportion of the profits. Under these circumstances, there can be no doubt that Captain Gardner, having turned in his cargo under the contract, bound Mr.

Clason to the fulfilment of the terms of that eon-tract; and the latter, having received the full two-thirds of the profits of the adventure, under the stipulation made by his agent, that he should account to Lyle for two-thirds of his douceur, or whatever else it may be called, (for names will not alter the essential quality of the thing) he is bound to perform such stipulation. If, therefore, the referees have not admitted this claim, they have erred as to the law, and the award ought to be set aside.

If, on the contrary, they have admitted it, then they must have allowed a balance found due to Clason in the other suit, as a set-off against it. This also is incorrect; for the suits are not between the same parties, and the partnership funds should have been first appropriated to the discharge of the partnership debts. The agreement between the attornies, does mot authorise such set-off. Its only object, is the admission of certain demands which would not fall within any of the counts in the respective declarations, In order to avoid further litigation.

The award, therefore, in each suit, ought, in my opinion, to be set aside. The one against Clason, for the reasons above mentioned, and the one in which he is plaintiff, because there is a probability that the referees found a balance there due to him, which he would otherwise lose the benefit of. The judgment of the court is, that both awards be set aside,