Consequa v. Willings

6 F. Cas. 336

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: April 15, 1816
• Status: Published

Opinion

WASHINGTON, Circuit Justice.

The written or statute laws of foreign countries, are to be proved by the laws themselves, if they cau be procured; if not, inferior evidence of them may be received. The unwritten laws or usages may be proved by parol evidence, and when proved, I admit that it is for the court to construe them, and to decide upon their effect. Whether the law or usage is sufficiently proved or not. is a question, upon which the court may express an opinion or not, as may seem proper. I have always thought, that the court may give an opinion' upon the weight of evidence, if it be believed by the jury; because upon a motion for a new trial, upon the ground of the verdict being against evidence. the court must decide whether it be so or not: and it would seem to follow, that the same opinion might have been expressed to the jury on the trial. But the court may decline to give an opinion to tho •jury, upon the weight of evidence; and If it be doubtfui, it is in general most proper to leave it to the jury. There is certainly no error in the court pursuing this latter practice, and it is even doubted, by very great authority, whether the -court ought, in any case, to express an opinion, whether a particular fact is proved or not. I do not concur in that sentiment, nor have I acted in conformity with it, although I am clearly of opinion, that the court is not bound to give an opinion in such a case. The present case was precisely within the distinction above stated. The rule laid down in the case of Gilpins v. Consequa [Case No. 5,452] was conceived by the court to be the general rule of compensation, in cases of this kind. But, if according to the usage of this trade at Canton, a different rule prevails there, the court was of opinion, in the present eases, that that rule was incorporated into the contract, and ought to prevail here. This is still my opinion. The rate of damages to be recovered for a breach of contract, is a part of the right to which the injured party is entitled, and it is totally distinct from the remedy provided for enforcing it. In the former case, the lex loci, where the contract was made or broken, is to prevail; in the latter, the lex loci of the forum, where the remedy is provided.

In this case, the only evidence of a usage different from the general rule, was the settlement made by Consequa of the damages claimed on the cargo of the Ganges; and his promise to settle the claims arising from the cargo of the Asia, upon the same principle. But the court could not undertake to say, whether, under all the circumstances of the case, settlements and agreements were evidence of a usage consistent with them; or, whether they did not proceed from a spirit of concession, voluntarily made by 'Consequa, for which he might have had particular reasons. It was therefore left to the jury, and I think properly so, to decide the fact one way or the other. When a usage is so established as to leave no reasonable doubt of its existence, it becomes a part of the law; and the court will decide upon it as such, without requiring it to be again proved. Most of the usages of trade, have at some period been proved as matters of fact, and when sufficiently established, they have grown into laws. The rate of interest in China, for instance, is so well established to be twelve per centum per annum, that the court would not require it to be proved.

As to the usage of the trade, attempted to be proved by Consequa, in relation to the purchase by samples, it is by no means clear, that the verdict is in opposition to the evidence. The witnesses examined to prove it, seem not to have had in view the case of an express contract, like that entered into in this case; and it would be strange indeed, if the mere examination of samples, sent by the Hong merchant to the purchaser, should amount to a rescinding of an express contract by the merchant, to deliver teas of the first quality. It would be too much to construe an act so universally practised, into a waiver of an express warranty.

The third objection to the verdict must prevail. The settlement of Consequa with Mr. Kuhn, in relation to the cargo of the Ganges, and his promise to settle upon the same principles as to the cargo of the Asia, was the only evidence to prove an usage at Canton, as to the rule of compensation, opposed to that laia down in the case of Gilpins v. Consequa [supra]. Kuhn was the witness, called to prove this settlement. The establishment of such an usage swelled the damages in one of the cases, with which the jury was then charged, and in which the witness was one of the plaintiffs. He was then a witness in his own cause, against the most sacred rules of evidence. It is no answer to say, that the verdict may have been founded upon other testimony than that of Kuhn. It is a sufficient objection, that it may have rested solely on his evidence or have been influenced by it. It was contended against the rule, that although the court should grant a new trial in the case where Kuhn was one of the plaintiffs, it is no reason for setting aside the other verdicts. To this the answer is, that Kuhn’s evidence was given under the influence of an interest, which affected, equally, all the cases. If the danger of offering a temptation to perjury, be the reason for excluding an interested person from giving testimony, it is equally applicable to the cases in which Mr. Kuhn has no interest, as to that in which he had. These observations will not be considered as applicable to this respectable gentleman, otherwise than as the law applies them to all men indiscriminately, who are directly interested in the cause in which they testify.

As to the question of interest, it is unnecessary to give any opinion at this time. The right of Consequa to claim it upon -.he debt due by the defendant, will, under the particular circumstances of the case, deserve serious consideration should the cause be tried again. I shall be better pleased, if the parties should render this unnecessary, by a compromise upon just principles.

Rule made absolute.