Lyle v. Clason

1 Cai. Cas. 323, 1 Cole. & Cai. Cas. 233

• Court: New York Supreme Court
• Decided: August 15, 1803
• Status: Published

Opinion

Lewis, Ch. J.,

delivered the judgment of the court. These actions were referred under rules of court to three referees, who have reported in each against the respective plaintiffs, declaring nothing due on either side. Motions are now made to set aside the several awards.

In the first cause, in which Lyle is plaintiff, the application is founded on a presumption that the referees have been mistaken in point of law. That *hey have either rejected a contract entered into by the defendant’s shipmaster and consignee, as not obligatory on his principal, or have set off the balances found for the plaintiffs, in the respective causes against each other.

To this the defendant answers, that he was not bound by the engagement of his shipmaster, who was also his consignee, and that if the referees have.made such offset, they were justified on principles of law, and by an agreement entered into between the respective attorneys.

*Oaptain Gardner’s powers being discretionary, he was perfectly justifiable in making the disjDOsition he did of the cargo intrusted to him, and even if he was not, it does not appear that Mr. Clason ever denied that transaction his sanction, but that, on the contrary, he has received, by remittances to Bird, Savage & Bird, of London, the proceeds of the cargo, including his proportion of the profits. Under these circumstances there can be no doubt that Captain Gardner, having turned in his cargo under the contract, bound Mr. Clason to the fulfilment of the terms of that contract; and the latter, having received the full two-thirds of the profits of the adventure, under the stipulation made by his agent, that he should account to Lyle for two-thirds of his douceur, or whatever else it may be called, (for names will not alter the essential quality of the thing,) he is bound to perform such stipulation.

If, therefore, the referees have not admitted this claim, they have erred as to the law, and the award ought to be set aside.

If, on the contrary, they have admitted it, then they must have allowed a balance found due to Clason in the' other suit, as a set-off against it. This also is incorrect; for the suits are not between the same parties and the [*843] *partnership funds should have been first appropriated to the discharge of the partnership debts. The agreement between the attorneys does not authorize such set-off. Its only object is the admission of certain demands which would not fall within any of the counts in the respective declarations, in order to avoid further litigation.

The report, therefore, in each suit, ought, in my opinion, to be set aside. The one against Clason, for the reason above mentioned, and the one in which he is plaintiff, because there is a probability that the referees found a balance there due to him, which he would otherwise lose the benefit of. The judgment of the court is, that both reports be set aside.

(a)

Both reports set aside.

See Combs v. Wyckoff, ante, 147, and the notes.