Frank Perret and another v. Keill and another, 1 Rob. 307

Morphy, J.

The petitioners represent that in the .month of March, 1837, they entered into an agreement with one Edmond Courant, acting- for Keill & Courant, a commercial partnership established at Liverpool, in Great Britain, and for Frangois Courant & Co., a commercial partnership established at Havre, in France, for the shipment to Europe of a certain quantity of cotton, to be sold for the joint account, in equal shares, of the petitioners, Keill & Courant, and the said Frangois Courant & Co.; and that by the said agreement the cotton was to be purchased with the proceeds of bills of exchange, to be drawn by petitioners on the said Keill & Courant, and Frangois Courant & Co., and to be by them accepted and paid.

The petitioners further show, that in pursuance of said agreement cotton was purchased, and bills of exchange were drawn by them on said Keill & Courant, and Frangois Courant & Co., for the price of saicl cotton, but that the said bills were not accepted by the drawees, but on the contrary were dishonored and returned to New Orleans, where petitioners, as drawers, were obliged to take them up aha heavy advance on the original amount, for exchange, costs, charges, &c. The petitioners further show, thatF.

Courant & Co. subsequently assigned to the defendants their interest in the adventure, so that .they and the defendants remained alone interested therein, in the proportion of one-third for petitioners, and two-thirds for the said Keill & Courant. ( The petitioners further aver, that various disputes and difficulties having arisen in the settlement of said joint adventure, an agreement was finally entered into between the parties at Havre, on the 18th of October, 1837, that all the clauses and conditions in the agreement of March,1837, had been fully complied with, and the partnership existing between the said Keill & Courant and them for the purchase of said cotton had been filially closed and liquidated, with the following exception, to wit.: that Keill & Courant had not paid and had refused to credit them with the two-thirds of the loss on the returned hills of exchange, which had been drawn on the partnership account, and consequently should be charged to the partnership ; that the loss on the re.turned bills of exchange amounted to nine thousand seven hundred and forty-four dollars and 58 cents, two thirds whereof, to wit. $6496 39, are due to the petitioners, and for which they pray judgment against the said Keill & Courant.

The attorney appointed to represent the defendants, denied all the allegations of the petition, except that of their interest in the cotton shipments, and the agreement entered into at Havre, which he avers has been fulfilled by Keill &Courant.

The settlement of the amount due to the plaintiffs, having been left open for further proof, by agreement of counsel, the court below decided, that in the settlement to be made between the parties, the plaintiffs should be credited with two-thirds of such sum as shall be found to be the amount of the loss on the bills returned; and from this judgment the defendants have appealed. The only difficulty in this case turns on the proper construction to be given to the compromise entered into between the parties on the 18lh of October, 1837.

It is urged by the appellants’ counsel, that all the matters concerning the cotton adventure on joint account were embraced by and finally settled in this compromise ; and that Keill & Courant are thereby exonerated from any claim whatsoever on the part of the plaintiffs.

The latter, on the other hand, contend that the main object of the agreement was to relieve Keill & Cour-antfromthe damages,forwhichthey would otherwise have been liable as drawees, for having suffered bills drawn on them by express agreement to return protested; but that it was never intended to discharge them as partners in the adventure from the obligation of bearing their proportion of the loss on these returned bills, which had been drawn by plaintiffs for account of the partnership.

As sustaining their view or construction of the compromise, the appellants rely chiefly on the second and fifth articles of that instrument. The former acknowledges the right of Keill & Courant to let the drafts return under protest, and regulates at what rates of exchange. certain sums due by the defendants to the plaintiffs in pounds sterling, and by the plaintiffs to Frangois Courant & Co. in dollars, shall be admitted in compensation on the settlement of their accounts. The other

article provides for the removal of all attachments laid by the plaintiffs on funds belonging to Keill & Courant, in New Orleans, and stipulates that the plaintiffs shall levy no other attachments on account of the business done between them, which is to be considered as finally settled by the' agreement. These articles, notwithstanding the language used in the latter of them, do not appear to us inconsistent with the construction contended for by the appellees.

It is clear that, but for this compromise, the plaintiffs might well have refused to bear their proportion of the loss resulting from defendants’ breach of their contract, in refusing to accept the bills, and might have insisted that the whole amount of it should be borne by them. Their refusal to accept the bills, and the repudiation of the original agreement which such refusal seemed to imply, had led the plaintiffs to bring the suit reported in 15 La. 210, and to attach divers funds belonging to the defendants. The compromise took place pending these-attachments, and probably with a view to remove them.

From the whole context of the instrument we are satisfied, that the individual liability of the defendants to the plaintiffs for their refusal to accept the bills drawn for the cotton, was the main difficulty intended to be obviated. The unprecedented embarrassments and derangement of trade in the spring of 1837, no doubt induced the plaintiffs not to insist rigorously upon their rights, and justified in their opinion, to a certain extent, the course pursued by Keill & Courant.

But the acknowledgment, which the plaintiffs made of the right of the latter to suffer the bills to return protested, was never intended or understood as affecting or questioning in any way their own right to make the shipments on joint account, and to draw against them on the two firms in Liverpool and Havre.

It would be then most unreasonable to infer from it, that they intended not only to exonerate Keill & Courant from all direct and individual responsibility to them, but also to free them from all contribution to the partnership loss incident to the return of the bills, and to assume the whole amount of this loss upon their own shoulders. ' As the compromise exhibits no consideration whatever for such an onerous undertaking on the part of Perret & Gaily', it would in fact amount to a donation, and nemo facile clonare videtur.

It is a well settled rule, that compromises regulate only such matters as appear clearly to he embraced in them by the intention of the parties, whether it he explained in a general or particular manner, unless it he the necessary consequence of what is therein expressed. Civ. Code, art. 3040. Far from there being any express mention that this compromise was a settlement of all the previous concerns between the parties, it results clearly from several articles of the instrument, that it was merely to put an end to some of the difficulties, which had arisen between them.

After settling these difficulties, the agreement regulates the manner in which the accounts in relation to the shipments of cotton, the result of wbiclrwas not yet known tq the parlies, were to be adjusted.

Article 8, provides, that the ‘plaintiffs are to be debited with their share in the extra charges and hank commissions paid to prevent the sacrifice of the cotton.’

Article 7, ‘that the defendants shall credit the plaintiffs with their (the defendants’) share in the loss on the shipments on joint account;.’ and

article 3, ‘that the plaintiffs shall be allowed to verify the account of sales and other items in their details, but that the account shall in all cases he finally established agreeably to a model annexed to the agreement; and the model referred to contains to the credit of the plaintiffs, the defendants’ share in the loss on the shipments. It only then remains to be enquired whether the loss on the returned bills of exchange is a part of the losses on the shipments, for which the defendants are liable in proportion to their interest in the joint operation.

Of this, it appears to us, that there can hardly be a doubt. The bills of exchange having been drawn by the plaintiffs for the purchase of the cotton shipped on joint account, the loss consequent on the return of these bills must form an item, which for the purpose of ascertaining the result of the adventure, must he either deducted from the profits or added to the loss, as the case may he. The damages paid on these bills must be viewed as one of the charges of the shipments on joint account, as well as all the other expenses, such as freight, insurance, exchanges, interest, storage, &c.

The exemption from the obligation to bear their share or proportion of these damages, which the defendants claim .under the compromise, is not only unwarranted by the letter and spirit of that instrument, but would violate those principles of fairness and equa-lily which should always obtain among partners, and would moreover be contrary to law. Civ. Code, art. 2785. In the' language of the judge a quo, ‘the strange anomaly might be exhibited of some of the partners making a profit by the same operation in which their co-partners incurred a loss.’ Judgment affirmed.