MERRICK v. BERNARD, 17 F. Cas. 78

THE COURT informed the plaintiff’s counsel, when about to reply, that they wished him to confine his observations to the facts in the cause; since, upon the law of the case, it was impossible there could be two opinions. If the defendant knew, that Randell acted as agent for the several shippers, and that they had several interests in the cargo; then the defendant, by the sale of the plaintiff’s part of the cargo, contracted a debt with Mm, though he would have been fully justified in paying the money to the agent, unless prohibited to do so by the principal.

But this very power in the principal, to forbid that payment, proves that there subsisted a contract also between the defendant and the principal. If this be the case, the question is, has this debt been legally discharged? That it has been paid either to the plaintiff or to Randell, is not pretended; but has the defendant, by any act of Randell, been exonerated from the payment?

This brings us to the question, what acts the agent could do, to discharge the defendant within the general scope of his authority; for if that was restrained by any private instructions, it does not appear that such instructions were communicated to the defendant. He had a power to sell the plaintiff’s property to the defendant, or to authorize him to sell it, and he might have received payment in money or in bills, and possibly in other ways.

But most clearly he had no right to permit the defendant to retain the money, to satisfy the debt due from the agent Mmself, or from any .third person, with notice to defendant of the plaintiff’s interest.

If the defendant had paid the money to the agent, he, the agent, might, without such notice, have paid the money again to the defendant, to enable him to take up the bills of Jones'& Clark; because, in that case, having once received the money, and mixed it with the general mass of his own money, there could be no means to identify it, as belonging to the plaintiff; and in that case, the agent alone would have been responsible. See Salk. 160.

But suppose, when the defendant paid the money, in the supposed case, he had received it back, with perfect knowledge that it belonged to the plaintiff; the payment and repayment being merely an operation to enable the agent to convert the plaintiff’s money to the use of Jones & Clark, there would have been mala fides in the transaction; and the defendant, receiving the money as the money of the plaintiff, would be answerable to him for it; no matter how the transaction was sanctioned by the agent, the defendant could not say, that he had discharged the debt once due to the plaintiff.

The whole question then is, whether this transaction was bona fide or not: and whether so or not, must depend on the question, whether the defendant knew that Randell was the agent of distinct shippers, and that the cargo thus assigned over to Mm, for the payment of the bills, was the property of different persons. If he did know these facte, the cause is clearly with the plaintiff.

Upon the second point, the facts appearing to be as stated by the defendant’s counsel, that Randell was bound, by an agreement with the defendant, to return from Guadeloupe to Bordeaux; the counsel for the plaintiff, upon an intimation from tlie court, of their opinion on that point, gave up the claim of difference between the old and new duties. Verdict for plaintiff.