A promise by a merchant's factor that he would write to his principal to get insurance done, does not bind the principal to insure.

THIS was an appeal from a decree of the circuit court, for the district of Virginia, which dismissed the complainant's bill in equity.

Ware, the executor of Jones, surviving partner of the house of Farrel and Jones, British merchants, had in the same court, at June term, 1800, obtained a decree against William Randolph, administrator de bonis non, with the will annexed, of Peyton Randolph, for a large sum of money, with liberty to William Randolph to file this bill against Ware, for relief in regard to 50 hogsheads of tobacco, shipped in September, 1771, in the ship Planter, captain Cawsey, and consigned to Farrel and Jones; a credit for which had been claimed, but was by the decree disallowed.

The tobacco never came to the hands of Farrel and Jones, having been lost at sea without being insured.

The appellant contended, that he was entitled to a credit for the customary insurance price of the tobacco, viz. 10l. per hogshead with interest.

1. Because, from the usage of the trade between the Virginia planter and the British merchant, it was the duty of the latter to have insured the tobacco, and that having failed so to do, he is responsible as insurer.

2. Because Thomas Evans, the appellee's agent for soliciting consignments and managing this business, having promised to get the insurance done, it is equivalent to the promise of his principals, Farrel and Jones, and they are responsible for the consequences.

3. It was contended, that the claim, under all circumstances disclosed in the record, if not fit to be decreed, according to the prayer of the bill, appears to be of a nature proper to be decided in a court of law, in pursuance of an order of the court of equity, and therefore, that the decree should be reversed, and an order made, directing a trial at law, to ascertain whether the appellee is not liable to the appellant for the value of the tobacco, and interest from the month of September, 1772, as standing in the place of insurer thereof.

C. Lee, for the appellant.

1. The common course of the trade was, for the British merchant to cause insurance to be made, upon notice of the shipment of the tobacco: and it appears by the letters exhibited in this record, that Farrel and Jones did, without any special orders, cause insurance to be made on some of the tobacco shipped by Randolph's executors.

Thus, in their letter of August 1, 1769, to Richard Randolph, they say, 'we have made the following insurance on the True Patriot,' for the two estates, viz. 480l. on 40 hogsheads, W. Randolph's estate; 816l. on 68 hogsheads, P. Randolph's,' but say nothing of having received orders therefor. And again, August 10, 1769, 'we have made 816l. insurance on the True Patriot, on 68 hogsheads which captain Cawsey informs us he is to have.'

It is true, that on the 15th of August, 1771, they say, 'Captain Cawsey writes us that he is promised 67 hogsheads of the estate's tobacco, but we have received no order's for insurance.' But they had received no orders for the insurance they made in August, 1769, on the 68 hogsheads which captain Cawsey informed them he was to have. The executors had a right to expect, that as Farrel & Jones had made insurance without orders, on the 68 hogsheads, by the True Patriot, they would also have insurance made on the 50 hogsheads by the Planter.

The appellee's amended answer, put in after this point was known, does not pretend that any orders were given for the insurance, made in 1769, on the 68 hogsheads. And in the accounts of Farrel & Jones, there are many charges of premiums on insurances, for which no orders appear to have been given.

2. But the deposition of P. L. Grymes, goes to establish an agreement, on the part of Evans, the agent of Farrel & Jones, to get insurance done upon the 50 hogsheads in question.

This deposition is corroborated by the fact, that in the correspondence produced, there is no letter of the executors, respecting the shipment of that parcel of tobacco. They relied, altogether, upon the promise of Evans.

No argument against the claim can arise from the length of time which elapsed before it was made. The estate of Randolph was acknowledged to be indebted; the executors, therefore, would not bring a suit. It was time enough to exhibit their claim when suit was brought against them. Besides, from 1774 to 1783, the war interposed; after that time until the suit was brought, the courts of justice were absolutely shut, or legal impediments existed to the recovery of British debts. The executors, also, might have been ignorant of their right. This suit, therefore, ought to be considered as if it had been instituted in 1775.

3. This is a claim proper to be settled in a court of law. There is a difference between a case where the chancellor will order an issue at law to be tried, to satisfy or inform his conscience, and where the whole claim is a matter properly cognizable at law.

P. B. Key, contra.

1. There is no evidence in the record of such a general usage of the trade, as is contended for by the appellant. And if there had been, the voluminous correspondence, exhibited in the cause, shows most clearly, that it did not exist in the negotiations between the present parties. For it proves, that in almost every instance, where the Randolphs shipped tobacco, they ordered insurance to be made at the time they gave notice of the shipment. Farrel & Jones, in their letter of August 6th, 1770, (stated in the appellee's answer) say, 'We made no insurance on the Virginian, though we were a little uneasy that so large a quantity as 66 hogsheads were ventured home without it, for it is our rule not to make any insurance, without orders, upon tobacco; which you will please to remember.'

On the 15th of August, 1771, they say, 'Captain Cawsey writes us that he is promised 67 hogsheads of the estate's tobacco, but we have received no orders for insurance.'

On the 17th of September, 1771, the tobacco in question, was shipped. On the 10th of December, 1771, Farrel & Jones write to the Randolphs as follows: 'We wrote you the 15th of August, by the True Patriot, captain Aselby, to which we refer. We observe by our agent Mr. Evans' letter, that you have shipped 50 hogsheads of the estate's tobacco, on board captain Cawsey, and it gives us great concern to find you ordered no insurance on them, though we wrote you in August 1770, that we never made any insurance on tobacco, without orders; as we are much afraid some accident has happened to him. He has now been sailed from Virginia twelve weeks, and by accounts we have from captains who sailed from America about that time, he must have had dreadful weather in a few days after he came out. We think there is no other chance for him, but that he has lost his masts and obliged to bear away for the West-Indies.'

In their letter to the Randolphs of 4th April, 1772, they say, 'You have also, inclosed, the estate's account current to the 31st December, balance in our favour _____ if any error, you will please to advise us.'

And in August 15, 1772, they say, 'As yet we have received no orders for insurance on the Elizabeth, on account of the estate. If any tobacco is shipped in her, we hope to receive directions in time to prevent the like accident as happened last year.'

On 23d of April, 1773, they say, 'Having settled the account current agreeable to what Mr. Evans wrote us, we send it to you inclosed. Balance in our favour _____ if any error, please to advise.'

On the 10th of August, 1774, they write, 'You have also, inclosed, the estate's account current to 31st December last; balance in our favour _____ if any error, please to advise.'

And on the 10th of March, 1773, they sent the estate's account current to 31st of December, with the same request, 'if any error, please to advise.'

Here the correspondence was closed by the war; after which, in 1783, the house of Farrel & Jones sent out an agent, Mr. Hanson, who was known as such to the Randolphs, and who, in that capacity, transacted business with them, and who continued in Virginia until the year 1800.

During the whole of this period, of nearly 30 years, not a syllable was said of any claim against Farrel & Jones, on account of the 50 hogsheads of tobacco lost in the Planter.

In addition to all this, it appeared, by the exhibits in this cause, that some time in June, 1772, after the loss of the tobacco was known to the Randolphs, they gave their bond, ante-dated on the 1st of January, 1772, for the balance then due, without any credit being given for the lost tobacco.

2. But it is contended, that Farrel & Jones had, in some instances, made insurance without orders, and, therefore, they were bound to do it in this instance.

We deny the fact. Although, in one or two instances, F. & J. have, in their letters, mentioned having made insurance, without stating it to be by order, yet it does not follow that no orders were given. And the whole general tenor of the correspondence shows, that it was not their usual practice to insure without orders.

3. The appellant relies upon the affidavit of Grymes, to show that Evans, the agent of Farrel & Jones, promised to have insurance done.

This affidavit appears in the transcript of the record, without date, place or circumstance. It does not appear to have been sworn before any magistrate competent to administer an oath, and no cross-examination, nor any thing to show upon what occasion it was made. It is uncertain in itself, uncorroborated by any other part of the testimony, and inconsistent with the general tenor of it. He says the conversation happened early in the year; but the tobacco was shipped in September. His words are, 'He the said Evans informed the aforesaid Peyton and Richard Randolph, that he was writing to the aforesaid house of Farrel & Jones, that he would direct insurance to be made,' 'and that they need give themselves no further trouble in the business.' The long time which had elapsed before this deposition was made, (probably 30 years) renders its contents of very little weight, especially as there were a number of shipments of tobacco made at different times in the same ship, and he swears the conversation happened early in the year. It appears from the correspondence, that early in the year preceding, viz. 1770, the same ship had been loaded with tobacco at the same place; and this renders it probable that Mr. Grymes had mistaken the year.

But admitting that it proves all that is contended—yet Evans was not competent to bind his principal to insure; it was not a matter within his agency.

JOHNSON, J.

I found my opinion in this case upon a single consideration. It was incumbent on the appellant to show that Evans' neglecting to comply with his promise to insure, made Farrel & Jones liable. I think it did not, because it appears that Farrel & Jones did not generally hold themselves bound to insure shipments of tobacco, without receiving express instructions to do so. It was, therefore, incumbent upon the executors of Randolph to communicate such instructions to Farrel & Jones. If they confided in the promise of Evans to give these instructions, it was to their own prejudice. And although the failure of Evans to do so, certainly made him personally liable to them, yet it could not produce a liability in Farrel & Jones. So far as Evans was entrusted to do an act incumbent on the appellant's testator himself to do, he was the agent of the executors of Randolph, and not of Farrel & Jones.

WASHINGTON, J.

In this case it appears that a letter was written by Farrel & Jones, in August, 1770, notifying the executors of Randolph, that they would not make insurance without orders. And it is shown also, that the Randolphs were accustomed to give orders for insurance whenever they wished to have it made. Whatever then may be the general usage of the trade, it will not apply to the present case.

The deposition of Grymes comes in a very questionable shape. It speaks of things 30 years ago, and in very uncertain language. But admitting for a moment that it applies to this shipment, Evans had not authority to bind his principal by a promise to insure. He did not promise for them, but promised for himself, that he would write to them to make insurance. This, it is admitted, he did not do. Are Farrel & Jones liable for his personal engagement?

But the deposition of Grymes is not only uncorroborated, but opposed by the other evidence in the cause. If the Randolphs relied upon this supposed engagement of Evans, why did they give their bond in 1772, nine months after the loss, and long after they had notice of the loss, for the balance of the account, without demanding a credit for the lost tobacco? Three accounts current were sent them for the years 1772, 1773 and 1774, at several times, and they were requested at each time to examine them, and, if they contained any error, to advise Farrel & Jones of it. By not doing this, they have given strong evidence that there was no such agreement with Evans, that there was no error in the accounts, and that Mr. Grymes must have been mistaken, or that his deposition refers to some other transaction.

PATERSON, J.