Nickerson v. Soesman

98 Mass. 364

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1867
• Status: Published

Opinion

Bigelow, C. J.

It is not disputed on the part of the defendants, that, under the contract of March 9,1860, they became the agents of the plaintiffs in Surinam to receive consignments of cargoes of merchandise, to make sales thereof, to collect the proceeds, and therewith to purchase return cargoes, and to hold any residue in their hands in the shape of goods, accounts, notes and other evidences of debt, as the property of the plaintiffs, and on the termination of the agency to deliver the same on demand to the plaintiffs or to their order. Nor is it open to question that as between the parties the legal effect of this relation was, that the title to all the property, notes, accounts and other evidences of debt which were in the hands of the defendants, including money which they had received for sales of property consigned to them under the contract, was in the plaintiffs, who had a right to resume and take possession thereof when the contract of agency was terminated. Story on Agency, §§ 229,231, and cases cited. Indeed, this was the express stipulation of the parties in that clause of the contract by which it was provided that, on the cessation of the agency, which the plaintiffs had a right to terminate at their pleasure, the defendants should deliver to the plaintiffs on demand, or to their order, “ everything then in their hands, including all merchandise, all money received for sales, and all accounts and notes, goods and other written evidences of debts.” We do not see that there is any valid reason for the position taken in behalf of the defendants, that this stipulation was annulled or changed, or the legal relations of the parties in any respect varied or affected, by the agreement subsequently entered into by letters interchanged between the parties on the subject of the guaranty of the debts contracted by the defendants for sales of merchandise consigned to them. Giving full effect to this agreement, it did not operate to transfer the title to the property or to the proceeds of it in the hands of the defendants to them so that the plaintiffs could not reclaim and resume possession thereof at any time. The agreement of guaranty is to be construed with reference to the previously existing contract of agency. It did not supersede that contract or change the relations of the parties from that of principals and agents to that of debtors and creditors. The real effect of the agreement of guaranty was to superadd to the liability to the plaintiffs of the original purchasers of their property from the defendants the promise of the latter to be responsible for the payment of the price, if not paid by the purchasers within a fixed period of time. There is nothing in the agreed statement of facts from which it appears that, at the time of the demand on the defendants at Surinam, this period of time had elapsed after any one of the debts then due for merchandise of the plaintiffs had been contracted. But it is quite immaterial whether this was so or not. The original debt was to the plaintiffs, and it continued to be due to them, and the notes, accounts and other evidences of debt still belonged to the plaintiffs, in like manner as if no agreement of guaranty had been entered into, and irrespectively of the fact that the liability of the defendants on their guaranty had become absolute. Story on Agency, 33, 215. Morris v. Cleasby, 4 M. & S. 574. The plaintiffs did not agree to give up their claim against the vendees of their property. They still retained the right to seek their remedy against them on the original indebtment. By the contract of guaranty they acquired the additional security of the promise of the defendants to pay the debts if the original debtors did not pay them before the expiration of the stipulated period. It fol lows from this view of the relations and rights of the parties, that the defendants are liable in this action for their refusal to surrender the notes, goods, accounts and other evidences of debt, which were in their hands at the time of the demand on them in Surinam by the plaintiffs’ agent in February 1865.

The question then arises as to the measure of damages. It is to be borne in mind that this is not a suit on a debt for a sum of money, but is an action brought to recover damages for the breach of duty and of contract by the defendants as agents towards the plaintiffs as principals. The question is, not what sum shall the plaintiffs recover for a sum of money due and owing as a debt by the defendants, but what sum will indemnify the former for the neglect and omission of the latter to regard their instructions and fulfil their duty under a contract of agency. The general rule on this point is perfectly well settled. The agent is bound to make full indemnity to his principal for all loss or injury caused by his neglect, misconduct or other violation of duty. Story on Agency, §§ 217—220. Suydam v. Jenkins, 3 Sandf. 614. According to this rule, for the refusal of the defendants to surrender to the plaintiffs’ agent the money, notes, goods and evidences of debt, on demand duly made therefor in Surinam, the plaintiffs have a right to recover a full indemnity. They had a right to demand and receive them then and there; and for the failure of the defendants to fulfil their duty they are entitled to such sum as will put them in the same situation as they would have been in if the property had been then given up and received by them at Surinam. Clearly such indemnity would not be had, if the plaintiffs could recover only such sum in. the currency of this country as is nominally equivalent to the sum which they would have been entitled to recover in the currency of Surinam. It would fall just so far short of full compensation for the injury sustained as that sum m the current money of the United States is worth less than the same sum estimated in the currency of Surinam. The only just rule is, that in such cases the party who has suffered a loss or injury through the fault of another shall be allowed such sum in the currency of the place where a suit is brought as most nearly approximates to that which he would be entitled to recover in the country where the injury or loss happened and the damage was sustained. The cases in which actions have been brought on a contract to pay a certain sum of money in a foreign country depend on different principles and are not applicable to transactions like that out of which the present action has arisen.

The damages are to be computed according to the principle above stated, and, for the purpose of ascertaining them, in com pliance with the agreement of the parties the order is

Case referred to an assessor.