ROBINSON v. NOBLE'S ADMINISTRATORS

The case was submitted to the court on printed arguments, by Mr Watts, for the plaintiff in error; and by Mr Fetterman and Mr Colwell, for the defendants.

Mr Watts, for the plaintiffs in error.

Noble's administrators were plaintiffs in the inferior court, in an action of covenant, upon a certain agreement, under the seals of the parties.

From the face of this paper, as well as from evidence extrinsic, it appears that Robinson was a contractor with the United States for the supply of subsistence stores for their troops stationed at a north west post on the Mississippi river; and that Noble was a freighter, who navigated the rivers Ohio and Mississippi in steam and flat boats.

As one half of the stores were to be delivered by Robinson for transportation at Cincinnati, and the other half at the mouth of the Ohio — St. Louis being the destination: there appear to be two subjects of contemplation presented to the mind of said Robinson at the time he executed the agreement:

1. The usage prevailing between contractors of the United States and the government; the latter reserving the right to restrict the quantity of supplies, by giving to the contractors a reasonable notice of the same.

2. The loss arising from the perils of the river, in navigating it, at that early day, either in steam or keel boats.

Hence the caution observed by said Robinson in the introduction of the terms of his agreement. The stipulation is, on the part of Noble, to carry subsistence stores, supposed to amount to about 3,700 barrels, leaving the covenant, on the part of Robinson, implied, rather than clearly expressed, to deliver any number of barrels for shipment; and that number entirely contingent upon his interests, controlled, as they were liable to be, by the United States, and the dangers of the river.

The testimony of Richard Miller proves that one half of the stores was delivered at Cincinnati, and the reason why the other half (two thirds or three-fourths being delivered) was not ready at the mouth of the Ohio, was the loss of a flat boat laden with them, and under the direction of said Noble. Notwithstanding this misfortune of Robinson, it is seriously contended by the learned counsel of Noble, that, under the terms of his agreement, Robinson will be obliged to pay for the freight of goods that were sunk on their passage to the place of delivery, and never carried by Noble.

But the learned judge, in his charge to the jury, stretched the point farther and wider than the conscience of the counsel would allow them to go. For, although he admits there was no "charter party," still he asserts the irreconcilable doctrine, that the rule of damages, where there has been an infraction of the agreement, would be to find an average number between what was actually furnished and what the boat was capable of containing; so that, if the capacity of the "Paragon" exceeded 6,000 barrels, the average number, according to the charge of the court, and which governed the jury, would be far beyond even the 3,700 barrels. By referring to the account of Robinson, the court will see how far a blind chance has carried her votaries beyond the limits of justice.

The second reason assigned for the reversal of the judgment arises out of the misconstruction of the court of that part of the agreement relating to the payment of money.

It is proved by the deposition of Spencer, that the current value of the bills of the Miami Exporting Company paper, on the 1st April 1821, was sixty-six and two-thirds cents in specie.

Cincinnati is about 800 miles from St. Louis, and the mouth of the Ohio not more than one-fourth the distance; hence the stipulation, on the part of Robinson, to pay one dollar and fifty cents per barrel for transportation from Cincinnati, and the equivalent of one dollar and fifty cents in the depreciated currency, being one dollar, from the mouth of the Ohio to St. Louis.

This intention of the parties is the more apparent, by comparing the different clauses of the agreement. In the first, Robinson contracts to pay in "specie funds;" and in the second, "in the paper of banks current at Cincinnati at the period of delivery of said stores at St. Louis;" and, to put the intention beyond controversy, it is further added, "it is understood that the payment to be made in Cincinnati is to be in the paper of the Miami Exporting Company, or its equivalent."

The term "equivalent," (being compounded of æquus and valeo) both in its original and ordinary signification, means what this depreciated currency was worth, equal in value; and cannot be restrained to what it is contended it is, to bank notes of numerical value.

In the general derangement of currency of 1821, Mr Robinson clearly reserved the right to pay either in the paper of the Miami Exporting Company, in other depreciated paper, or the value of said Miami Exporting Company's paper in April 1821, in specie.

The case relied upon by the learned judge who ruled this cause will be found in Wilcox's edition of Ohio Reports, 87, 88 — Morris v. Edwards. And, although dissenting from the opinion of Judge Hitchcock, and yielding to that of Judge Burnet, it is considered that the opinion of Judge Hitchcock is irreconcilable with that of the district judge in the present cause.

It is based upon the principle that the amount of the indebtedness of the drawer of the note was liquidated and fixed at two thousand dollars; and that, if it had been intended as a promise to pay numerically, or the value of the currency, it ought so to have been expressed; and the judge infers, from the absence of the expression, that it was not so intended. In the case of Morris v. Edwards the evidence of depreciation was excluded from the jury; in this case, it was admitted without objection.

Differing as that case does essentially from the present, the attention of the court is particularly invited to a review of it.

To sustain the positions that depreciated bills are not money, not a legal tender, and not negotiable, but a mere commodity, the attention of the court is requested to the cases of M'Cormick v. Trotter, 10 Sergeant and Rawle 94; 8 Mass. 260; 9 Johns. 120; 3 Kent's Com. 76; 1 Dallas 124; 2 Dallas 123, 173; 1 Bibb 461.

It is certainly clear that, when a man agrees to pay an ascertained sum of money, in commodities, as in the case in 1 Wn. C.C.R. 376, where there was an agreement to pay seven thousand eight hundred and twenty-eight livres in sugar, or the bureau case in 2 Penn. Rep. 65, and fails to tender the commodities on the day they become due, that the debtor can recover the amount in money, as in the first case, and the price of the bureaus as in the second. But the does not disturb the inviolable principle. When there is a contract to pay in specific articles, the rule of construction is to estimate the damages according to the value of the articles at the time of the infraction of the agreement. Vide 2 Mason 89; 3 Wheaton 200; 6 Wheaton 109; 1 Peters's C.C.R. 85; 3 Cranch 298; 11 Sergeant and Rawle 445.

But, by the positive stipulation of the parties to the present case, the paper of the Miami Exporting Company was rendered a commodity, and Robinson agreed to pay in money, and Noble to receive in money, what it was worth at a certain date; and all the circumstances of the transaction, the words and spirit of the covenant, conduce to this construction.

The learned judge therefore has erred in his charge to the jury, upon the several points presented; and injustice has been done to the plaintiff in error.

Mr Fetterman and Mr Colwell, for the defendant in error, contended:

By the terms of the contract Robinson was bound to furnish Noble, the owner and captain of the steamboat Paragon, with with about three thousand seven hundred barrels of freight to be transported to St. Louis; one half to be furnished at Cincinnati, and the other half at the mouth of the Ohio, for the transportation of which was to be paid the sum of one dollar and fifty cents per barrel freight.

It appeared in evidence that he furnished for the long voyage, the full half of three thousand seven hundred barrels, and prevented Noble from taking other freight; but that for the short and profitable voyage, he furnished not quite two-thirds of a load. And in the declaration it is averred as a breach of the agreement on the part of Robinson, that he did not furnish the stipulated number of barrels, freight. In consequence of which Noble sought to recover damages.

It is urged that, by the true effect of the agreement, Robinson is not so discharged, and that he was bound to furnish the three thousand seven hundred barrels, subject only to such deduction as may be reasonable under the qualification of the terms connected with the number three thousand seven hundred, keeping in view the circumstances of the case. It is plain that the owner of a boat, entering into such a contract, would be governed in his arrangements, and in fixing his terms, by the quantity of freight he was to carry. The testimony shows that the amount agreed for, would make about two loads for the Paragon. The voyage was specially undertaken for Robinson; and, doubtless, the rate of the freight was regulated by its length, the time it would occupy, and the amount to be furnished. The boat might make money by carrying two full loads at one dollar and fifty cents per barrel, and lose money by carrying a load and a half at the same price. When Robinson agreed to furnish "stores supposed to amount to about three thousand seven hundred barrels," how was he understood by Noble? Did either of them suppose that this stipulation would be fulfilled by a delivery of three thousand one hundred? Surely, these qualifying terms have some reasonable limitation. When we say about three thousand seven hundred, we surely mean more than three thousand, else why descend to hundreds? Some degree of certainty in hundreds above three thousand, is clearly intended. Does not the common and plain intent of the language show that the parties meant some number between three thousand six hundred, and three thousand eight hundred? As hundreds is the lowest denomination to which the parties have descended, the range of the qualification must be kept within one hundred of the number named. Here, then, is the case of a plain agreement to furnish at least three thousand six hundred barrels of freight, and to pay for the same as further agreed. It matters not, in the view of the defendant in error, whether this is a case of a charter-party, or the case of goods carried in a general ship; the construction of the agreement must be the same either way. In relation to this point, our claim arises in the failure of Robinson to furnish the freight agreed upon, and is therefore a claim upon dead freight. The agreement, when understood, constitutes the law of this case, and there can be no rule in relation to charter-parties or freight in general ships affecting its construction, or the rights of the injured party, in reference to the question before the court.

It is objected that the judge erred in laying down the rule of damages on this point to the jury. It is believed that no fairer, nor more honest rule can be found than the one adopted by him, nor does it militate with any decision.

The owner of the Paragon is prevented taking more freight by the conduct of Robinson, for the long voyage and the short voyage, the owner of the Paragon performed his part of the contract. He transports a full load the long voyage, he gets but half a load the short one, and that to him the voyage intended to be profitable.

The judge is correct in saying that Robinson, when there had been a failure on his part to furnish the amount of freight stipulated, should pay for any freight that might have been transported, and which was not transported, owing to his interference or default. Can there be a fairer rule on this subject than the average one as laid down by the judge.

It is believed, that the rule recognized in Story's Abbot, last edition, pages 197 to 200, and the cases there referred to, fully establish the rule laid down by the learned judge to be the law. See also Penoyer v. Hallet, 15 Johns. 332. It is also presumed, that the same answer may be given to the fourth assignment of error, which is nothing more than a consequence from the first.

Abbot on Shipping 278, where the very rule of the court below is laid down distinctly. Holt on Shipping 350; 3 Chitt. Com. Law 399, 407, 408; Beames 190; Laws on Char. Part. 117; Cleme and Catara, 2 Gall. Rep. 73; Edwin and Stafford v. The East India Company, 2 Vernon 212.

2d. It is assigned for error, that the court were wrong in charging the jury, that Robinson having failed to tender to the plaintiff the paper of the Miami Exporting Company or its equivalent, at the time it was due, is obliged to pay the numerical value of the paper with interest.

It appears from the evidence, that at the time Robinson was to have paid in paper of the Miami Exporting Company, or its equivalent, such paper was considerably under par, and that Noble was an indorser on, and liable for a considerable amount to the Miami Exporting Company. It would then have suited him as well as cash. Robinson, however, does not pay when the agreed time arrived, and never has paid, even until this day. And now, after this great delay, he comes forward, and asks to be released from a breach of his contract. This is the case of a contract made in the state of Ohio, as the money is to be paid at Cincinnati.

The contract, then, between these parties, must be governed by the law of the state of Ohio on the subject; see Van Reimsdyk v. Kane et al. 1 Gallison 371; Camfranque v. Burnell, 1 Wn. C.C. 340; Golden v. Prince, 3 Wn. C.C. 313; Green v. Sarmiento, 1 Peters 74, 3 Wheat. Rep. 101 and 146; Cox and Dick v. The United States, 6 Peters 172; Boyle v. Zacharie and Turner, 6 Peters 635; which cases settle the point.

It is apprehended then, that in Ohio the question has been decided both at law and equity. The case of Edwards v. Morris, 1 Ohio Reports 524, was a bill in chancery, filed by the complainant, alleging, that at the time he contracted to pay for certain land in current bank notes of the city of Cincinnati, his agreement was, as he supposed, only to pay in paper of the Miami Exporting Company, which was thirty-three per cent under par, and praying for relief, c., and that he only may be compelled to pay the real value of that paper. And the case appears, by the report, to have been fully agreed, and the opinion delivered by judge Hitchcock, who says,

The prayer of the bill, in this case is, to enjoin a judgment at law, rendered at the last term of this court, and also to procure a rescision of a contract. Two reasons are assigned why the court should interfere.

1st. A mistake in the terms of the note upon which the judgment was rendered.

2d. A doubt as to the title to the land conveyed by the defendant to the complainant, which land was the consideration of the note.

The facts set forth in the bill, are admitted by the demurrer, and the question to be determined is, whether there is sufficient matter to justify the interference of a court of chancery.

It is the peculiar province of chancery, to relieve against fraud, mistake or accident. But how far parol testimony can be admitted, to prove mistake in a written instrument, has been matter of much altercation and doubt. Mistakes in matter of fact, it seems, may be rectified; and the opinion of the court, in the case of Hunt v. Rousmanier's administrators, 8 Wheat. 174, goes far to establish the doctrine, that where parties, through a mistake and ignorance of the law, execute a writing which does not carry into effect their contract and intention, the true contract and intention may be enforced in chancery.

In the case before the court, the alleged mistake consists in this; the purchase money, which was the consideration for which the note was given, was to have been paid in the notes of the Miami Exporting Company.

The note was to have been made thus payable, whereas, in fact, it was made payable in "current bank notes of the city of Cincinnati." The complainant understood, that he was to pay in the numerical value of the notes. If, in consequence of this mistake, the complainant has sustained an injury, he ought to be relieved.

It is an invariable rule in chancery, that he who seeks equity, must do equity. Suppose the notes referred to had been drawn, payable in the notes of the Miami Exporting Company, and there had been no mistake, what must the complainant have done to have defended himself at law, and to have secured to himself the privilege of paying in the notes of that bank. He must have tendered the notes on the day; and ought to have them in court.

The mistake however happened, which rendered it proper that he should come into a court of chancery: what ought he to do here? The contract was, that he was to pay, on a particular day, the sum named in the obligation, in a particular description of bank notes. He ought then to show, that he tendered these notes at the time specified, and he ought to bring them into court, that the opposite party may receive them. The notes, however, are not brought into court, nor is there any pretence that they have been tendered. The complainant, then, does not appear to be ready to do that equity which he requires of the defendant, and on this ground is not entitled to the relief prayed for.

The circumstance that the defendant, some time before the promissory note fell due, stated that he would not receive those bank notes in payment, cannot excuse the complainant in not making the tender.

It is claimed, that an account should be taken of those notes, and that the complainant should only be made liable for their specie value. This cannot be done. Bank notes are considered as money — the holder has a right to look to the banks which issue them for their numerical value in specie, and cannot be compelled to take for them a value fixed by shavers and brokers. The ability or inability of the bank to pay, ought not to be taken into consideration.

The demurrer is therefore sustained, the injunction dissolved, and the bill dismissed with costs.

In the same book, page 178, in the case of Smith v. Goddard, it is ruled at law, that a contract to pay in current bank notes, is a contract to pay in money, if the bank notes are not tendered at the day.

And also, in the before cited case of Morris v. Edwards, on the law side of the court, reported in 1 Ohio Reports, commencing at page 189, the question is fully discussed, both by the bar and the bench; and the question seems conclusively settled. To that case, and to the reasoning of the judges who delivered the opinion of the majority of the court, the attention of this court is respectfully requested.

It is thought, that the principle of the Ohio cases, is sanctioned by a decision of judge Washington's, in the case of Courtoir v. Carpentier, reported 1 Wn. C.C. 376. This was an action on a note, given by defendant to plaintiff at Guadaloupe, both parties being French subjects, for the payment of seven thousand eight hundred and twelve livres, in sugars, at money value; it was proved that notes of this description formed a species of circulating medium at Guadaloupe.

That according to the custom of the place, when payment is demanded, or suit brought, three persons are appointed to value the sugar, and determine what quantity should be delivered in payment of the note. That notes of this kind are always in a state of depreciation, from twenty-five to forty per cent, below cash. That when this note was given, it would have been easier to pay three thousand dollars in sugar, than one in cash. That they carried interest only from the time judgment was rendered, or the note registered before a notary. Held, that the law of the place where the contract was made must govern; but since our courts, to which the parties have appealed, cannot give a judgment for sugar, the value in money must be given, which, in effect, is the precise sum mentioned in the note, but that no interest is to be allowed up to the time of the judgment.

As to the term "about," and in the agreement it is obvious that it means between three thousand six hundred and three thousand eight hundred barrels — without straining, it cannot be made, in this case, to mean less. It appears, that the half of three thousand seven hundred was a fair load for the boat, and it is obvious, that the contract was made in special reference thereto.

It is believed, that the cases to which the court are referred, will justify the district judge fully in his instruction on all the points to the jury.