Downer v. Thompson.

had first taken. If the plaintiff forwarded the two hundred and sixty barrels as and for two hundred and fifty barrels, in order that no dissatisfaction might exist as to the quantity, or for any other reason, he would be entitled to recover the value of the two hundred and fifty barrels; and whether he did so, was a proper question for the jury to decide. On the other hand, if the two hundred and sixty barrels were not sent as a mere compliance with the order, the defendant was not bound either to make a selection of two hundred and fifty barrels out of the larger number, or to take the extra ten barrels and pay for them; and should a jury find that such was the fact, as the sale would then be incomplete as well for two hundred and fifty as for two hundred and sixty barrels, the defendant would be entitled to their verdict. The plaintiff is entitled to have this question submitted to a jury, and therefore the judgment of the supreme court should be reversed.

BOCKEE, PORTER, PUTNAM, RHOADES and WRIGHT, Senators, also delivered opinions in favor of reversing the judgment of the supreme court, on the ground that the question should have been submitted to the jury.

LAWRENCE, Senator. If the plaintiff had delivered two hundred and fifty barrels of cement on board the canal boat at Chittenango, according to the terms of the defendant's order, the title would have immediately passed; for it might then have been contended with propriety that the carrier was the agent of the defendant. But instead of the two hundred and fifty barrels, the plaintiff forwarded a larger quantity of cement, viz. two hundred and sixty barrels, estimating by count, and two hundred and seventy, estimating by weight; thus refusing, in legal effect at least, to comply with the defendant's order, and proposing a different arrangement. The carrier was not the defendant's agent for the purpose of consenting to this proposition, and as the defendant himself has not consented to it, the title to the cement remains in the plaintiff to this day. The evi

Downer v. Thompson.

dence given at the trial, therefore, failed to support either count of the declaration.

But it is said that the cement forwarded, though exceeding the quantity ordered by at least ten barrels, may have been intended by the plaintiff as a compliance with the defendant's request, and that the circuit judge should therefore have submitted the case to the jury. The plaintiff, however, never intimated any thing of the kind to the defendant, nor to the carrier who it is contended was his agent. On the contrary, the carrier was directed to collect freight on two hundred and sixty barrels; and from this circumstance it is fair to presume that the plaintiff originally intended to exact payment for the whole number. Indeed the point seems to be put at rest by the testimony of Cobb, who swore on the trial that "in the plaintiff's books the charge is made out to Thompson by weight, indicating the number of barrels;" thus showing conclusively that the entire quantity forwarded was charged to the defendant. The captain of the schooner testified, moreover, that he "did not offer to the defendant two hundred and fifty barrels only, nor tell him he could have any quantity less than two hundred and sixty;" and this too after he had been apprised that the excess was an objection. The defendant was therefore left to suppose that if he accepted the cement, he must pay for the whole which had been forwarded, and not merely for what he had ordered. I think he had a right to act upon this view of the case; and if he has thus acted, though under a mistake in respect to the intentions of the plaintiff, the consequences should be borne by the party who caused that mistake. To contend that the defendant, in the absence of all explanation, might have received the two hundred and sixty or seventy barrels of cement, without subjecting himself to liability for more than the price of two hundred and fifty barrels, seems to me to be doing violence to the plainest principles of common

sense.

Considerable reliance was placed by the counsel for the plaintiff upon the defendant's letter of October 11th, 1838, as containing an admission that the two hundred and fifty barrels of

Downer v. Thompson.

cement had been sent in compliance with the order. But I do not think the letter entitled to much weight. The main object of it appears to have been to notify the plaintiff that the defendant meant to have nothing to do with the cement. In giving effect to the letter, it should be considered as a whole, and the same credit be given to that part which is in favor of the defendant, as to that which is said to operate against him. This I understand to be a fundamental rule which is never to be lost sight of in construing the admissions or declarations of a party; and if it be applied here, the letter in question will be found to amount to nothing less than a full and perfect denial that the order had been complied with. For if it admits, as is contended, that the quantity of cement ordered had been forwarded, it insists at the same time that the quality was not good. The letter, therefore, leaves the case precisely as it would have stood had none been written.

But even if the letter be regarded as an admission that the plaintiff intended the cement forwarded should be received as a compliance with the order, how does the case then stand? That the quantity sent was in point of fact materially greater than the one ordered by at least ten barrels, has not been disputed in any stage of these proceedings. It is difficult to see, therefore, what the intention of the plaintiff has to do with the question. The order called upon him for the performance of an act which was specifically pointed out; and unless he has performed it, whatever may have been his intentions, he can claim nothing from the defendant.

If the view I have taken of this case be correct, the evidence given at the trial left no doubt that the plaintiff had failed to make out a right of recovery; and under such circumstances it was not only proper for the circuit judge to order a nonsuit, but it was his duty to do so. The power of nonsuiting should not be exercised, I admit, where there is reasonable ground for dispute as to the facts upon which the case must turn; but where the essential facts are uncontroverted, and it is perfectly clear that the action is without foundation, I can see no good reason for sending the case to a jury.

Suydam and others v. The Morris Canal & Banking Company.

I am of opinion that the judgment of the supreme court is right, and shall therefore vote to affirm it.

On the question being put, "Shall this judgment be reversed ?" all the members of the court present who heard the argument, except LAWRENCE and ScoVIL, Senators, voted for reversal.

Judgment reversed.

SUYDAM and others vs. THE MORRIS CANAL AND BANKING

COMPANY.

Though the cashier of a foreign banking corporation made a loan of money in the city of New-York on the borrower's check; held, not a violation of 1 R. S. 712, §6, it appearing that the transaction was an isolated one, and that the corporation kept no office for banking purposes in this state.

ON error from the supreme court. For a report of the case in that court, see 5 Hill, 491, 2. It was argued here by

J. H. Magher, for the plaintiffs in error, and

T. W. Tucker & S. A. Crapo, for the defendants in error.

DICKINSON, President. The Morris Canal and Banking Company carried on banking business in New-Jersey in pursuance of their charter, and transacted an exchange business in the city of New-York, where they made the loan for the recovery of which this suit is brought. The restraining act (1 R. S. 712, 6) prohibits the keeping of an office of discount and deposit for the transaction of business; but the making of a single loan, in good faith, cannot be a violation of its provisions. The loan in this case, it is true, may have been disguised for the purpose of evading the statute, and if such was its character a recovery ought to have been defeated. Whether so or not, however, was a question of fact; and, in the absence of VOL. VI.

28

Miln v. Spinola.

any exception to the proceedings at the trial on that point, we must intend the case was submitted to the jury under proper instructions from the court. As the jury have found in favor of the validity of the transaction, I think there is no ground upon which we would be justified in interfering with the judgment of the court below.

FRANKLIN, Senator, also delivered an opinion in favor of affirming the judgment.

On the question being put, "Shall this judgment be reversed ?" all the members of the court present who heard the argument, voted for affirming.

Judgment affirmed.

MILN vs. SPINOLA.

A mortgagee of a ship, who has taken possession and caused it to be registered in his own name, will in general be liable for supplies furnished and repairs made; and this, though his relation to the ship was unknown to the creditor when the demand arose.

ON error from the supreme court. The case originated in the New-York common pleas, where Spinola brought an action against Miln for stores furnished the ship Henry Kneeland, and recovered judgment, which was afterwards affirmed by the supreme court; whereupon Miln brought error. For the facts of the case, and the opinion of the supreme court, see 4 Hill, 177, 8.

J. W. Gerard, for the plaintiff in error.

A. S. Garr, for the defendant in error.

WALWORTH, Chancellor, and LOTT, Senator, delivered opinions in favor of affirming the judgment of the supreme court, and PUTNAM and SCOTT, Senators, in favor of reversing.