Griffith v. Willing

3 Binn. 317, 1811 Pa. LEXIS 5

Opinion

Tilghman C. J.

On the trial of this cause, the counsel for the defendants contended that the action of account render did not lie. I told the jury, that this would depend on'their opinion of the evidence; that the action did lie, if they should think that the plaintiffs were jointly interested with the defendants in the cargo, which formed the subject of controversy. We are all clearly of opinion, that this direction was right. For if the plaintiffs and defendants were joint partners in the adventure, the action of account render lay at common law; but if they were only tenants in common of the goods, the action was given by the 27th sect, of stat’ ^ & 5 Ann. ch. 16., which section has been extended to this state, although the whole act has not.

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The great point in dispute was matter of fact, viz. whether,or not the plaintiffs and defendants had undivided, interests in a quantity of hides received by their agent at Buenos Ayres, and shipped, part to Philadelphia in the defendants’ ship Canton, and part to Bordeaux in the plaintiffs’ ship America. This fact depended on a mass of testimony written arid parol, which it is unnecessary now to consider. I confess that neither at the trial, nor since, on further reflection, has it struck me in the same point of view in which it appeared Co the jury. But that is not sufficient ground for awarding a new trial. I cannot clearly discern any principle of law which the jury have violated, nor will I undertake to say that they have gone so decidedly against the evidence, as would justify the court in setting aside the verdict. They were men of business and of character. The subject was complicated. Therefore, although the verdict was contrary to my expectation, I think it best not to disturb it.

Ybates J.

I have examined the notes of the evidence in this case, with all the attention in my power. The adventure to South America has been most unfortunate to the parties. I cannot reconcile to my mind the amount of damages found by the jury, consistently with my idea of the true meaning of the original contract, under the circumstances and events which have occurred. But viewing the verdict in all its different aspects, I cannot say that it presents so plain a case of mistake of law or fact, in the jury, as would justify the interposition of the court. The facts are much complicated, and we cannot wonder that different inferences should be drawn therefrom by different minds.

As to the form of the action, I have no doubt that it would well lie; and that the 27th section of the British statute 4 & 5 Ann. c. 16., has been extended by our practice.

On the whole matter, I find myself constrained to concur in opinion, that the motion for the new trial be denied.

Brackenridge J. concurred.

New trial refused.

For such British statutes or parts of statutes as have been adopted in. this commonwealth, the reader is referred to a report made by the judges of this court'to the legislature of Pennsylvania, in oonformity with a resolution passed in 1807. This report is, at the request of the court, in> serted in an. appendix to the present volume.