De Tastett v. Crousillat

7 F. Cas. 542, 2 Wash. C. C. 132

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: October 15, 1807
• Status: Published

Opinion

WASHINGTON, Circuit Justice,

delivered the opinion of the court.

The first question arises upon the defendant’s claim of seven thousand pounds. The law is clear, that if a foreign merchant, who is in the habit of insuring for his correspondent here, receives an order for making an insurance, and neglects to do so, or does so differently from his orders, or in an insufficient manner, he is answerable, not for damages merely, but as if he were himself the underwriter, and he is of course entitled to the premium. In this case an insurance was effected, valid so far as it went, and had it gone as far as the defendant contends it ought, it would, by the legal decisions in England, have been inoperative and void. But the defendant says, that this ought not to have entered into the consideration of the plaintiffs; that, having ordered such an insurance to be made, it was the duty of the plaintiffs to make it, and to secure to the defendant the chance of an indemnity, though founded only on the honour of the underwriters. To this charge of misconduct, the plaintiff has given two answers: First, that he received no orders to effect the insurance, in the manner now cpntended for; and, secondly, that he made the attempt to do it, and could not get it effected. The words “solid assurance,” contained in the defendant’s letters, are certainly equivocal. They might .mean such an insurance, as would completely protect the property against captures by British cruisers, the imminent dangers of which were foreseen by the defendant, and acknowledged and dreaded by the plaintiffs, as their letters evince; or they might mean, that the underwriters should be men. of solidity, and able to pay in case of loss. It may be proper here to observe, that a claim for damages against an agent, comes-with a bad grace from a principal, who complains of a disobedience of orders, couched in ambiguous terms. If, with a reasonable attention to the language, the words would bear the construction which has been placed upon them, it would be too much to condemn him in damages, because, upon a refined and critical examination of them, a different construction should be deemed the correct one. The second excuse depends upon the fact, whether a reasonable diligence was used by the plaintiffs to effect an insurance, as ordered. If it was, they would not be answerable for the want of success which attended those endeavours, even if it were perfectly clear, that the general principle contended for, applies to a case of this kind; as to which we give no opinion.

The next question respects the claim for damages on the protested bills of exchange, which, it is contended, the plaintiffs, by their letter of the 3d of July, undertook to accept. To the court, it appears that that promise was confined to bills drawn on account of transactions which were to take place between the defendant, and De Tastett of St Sebastians; and this is strongly confirmed by the subsequent letters of the defendant to the plaintiffs; in which he discriminates between those bills which are to be charged to the house at St. Sebastians, and those drawn on his particular account If so, the defendant is entitled to damages upon those bills only, which are of the former description. But the court do not acquiesce in two of the positions laid down by Mr. Rawle under this head. Por, clearly, the plaintiffs were bound to accept all bills drawn on the faith of the letter of the 3d of July, between the date of the plaintiff’s letter to the defendant, forbidding any further drafts, and the receipt of that letter by the defendant; until which time, it could not be considered as changing the relative situation of the parties. And secondly; it is of no consequence whether the defendant had or had not funds in the hands of the house at St. Sebastians, unless this had been made a condition of the plaintiffs’ engagement to accept; for a man may validly bind himself to accept bills without funds, and if the promise be general, and the transactions fair, he continues bound until a countermand is received.

Verdict for the plaintiff.