Aimes, C. J.
The evidence read to us at the hearing does not permit us to doubt, that Mark H. Haskell engaged himself in the service of the plaintiffs, as their supercargo and clerk, in trading upon the African coast, and at Aden, in Arabia, at the rate of three hundred dollars per year and the expenses of living, until the arrival of the first vessel of the plaintiffs, consigned to him at the latter port; after which, he was to be compensated, by commissions only. This clearly appears, from the memorandum of the terms upon which he was to serve, which he took with him, coupled with the letter of the plaintiffs to him, dated August 9, 1853, and his reply to it from Zanzibar, dated January 12, 1854, before he went to Aden. But, to put the matter beyond doubt, his accounts rendered to the plaintiffs from Aden, embracing his charges for his services from the time of his leaving Salem to join the vessel of the plaintiffs at Providence, to his sailing from Aden, are made up upon the basis that such was to be his compensation ; he charging three hundred dollars per year and his expenses for the time of service elapsing prior to, and during his residence at Aden, until the arrival of the Parodi, (the first vessel of the plaintiffs consigned to him,) and for the remainder of his service there, 2¿ per cent, commissions on her outward cargo sold, and homeward cargo purchased by him, precisely according to the memorandum and letters aforesaid.
By a comparison of these accounts rendered by him, it appears also, that he.admitted himself, upon leaving Aden, indebted to the plaintiffs, as their agent, in the sum of $763.41, which, by his letter to the plaintiffs dated April 28, 1855, he stated was subject to the order of Messrs. Winn & Cheney, the general agents of the plaintiffs at Zanzibar. Now, the only explanation which he attempts by his answer to make of these accounts, is, that at the time he rendered them he anticipated, from -the plaintiffs’ letter to him of the date of September 1, 1854, to be employed, after leaving Aden, by them, through Winn & Cheney, either at Zanzibar or Mozambique ; since, unless
thus
compensated, the plaintiffs would, by breach of the contract of service, be indebted to him in a much larger sum
than the balance of their funds, admitted by him to be in his hands subject to the order of their agents at Zanzibar.
There are insuperable difficulties in the way of this explanation. In the first place, it appears, that he
has
been compensated, and that too by his own retainer from the funds of the plaintiffs in his hands, precisely according to the contract made with him before going to Aden ; and if, contrary to the tenor of his correspondence, he» was disappointed at not receiving more and earlier consignments at Aden, he had no right to be; since no particular amount of consignments were stipulated by the plaintiffs to be made to him as them resident agent at Aden, and his accounts of the state of the market there were discouraging to the last degree. It is quite apparent, that he went to Aden at his own risk as to the amount of commissions he should receive there; that depending, necessarily, upon the opening for the plaintiff’s trade which his own accounts of the market at that place would exhibit to them. There is not the least evidence of want of good faith on the part of the plaintiffs in inducing him to go to Aden ; and if he remained there longer than was profitable, it must have been because he saw no chance of bettering his condition; since his letters, and the memorandum of contract show, the latter that he did not feel himself obliged, and the former that he
ivas not
obliged, to remain there a moment longer than a sense of his and the plaintiffs’ -interests prompted him. In the second place, we are not satisfied, from the proof, looking at the ordinary compensation received by clerks and agents in, that trade of no greater experience than himself, that he has not received all the compensation that he deserved, even if we were not precluded by the contract, and by his accounts rendered, as we are, from looking at that matter in the aspect of a
quantum meruit.
Starting for Aden with this balance of the plaintiffs in his hands, the proof shows, that instead of paying it over, at Zanzibar, to the agents of the plaintiffs’ agents there, as his letter of April 28, before referred to, admits was his duty, he invested it, with other moneys of his own, at Zanzibar and Mozambique, in twelve tusks of ivory, purchased in his own name; and subsequently, upon his arrival with it in the plain
tiffs’ vessel at Providence, entered it at the custom-house here, as his own property. "We say this, because, although his answer denies that the ivory was purchased, in whole or part, with the funds of the plaintiffs, yet the assertion is evidently made upon the false notion that the plaintiffs were indebted to him for services beyond their balance in his hands; since, it is proved, that he admitted to two of the plaintiffs that this balance
was
invested by him in the ivory, and hi§ own cross-examination as a witness shows, that he had not funds enough in hand, without applying this balance, to enable him to make the purchase. He has thus, contrary to his admitted duty, confounded the property of his employers with his own in the ivory purchased, and now, it being with the rest of the cargo of their vessel in the plaintiffs’ storehouse, seeks, under cover of an attachment and levy, eyidently made by his father as his creditor with his connivance, to wrest it from their possession, and to apply it to his exclusive use.
Under such circumstances what is the plaintiffs’ equity ? It is, as exemplified and illustrated by Lord Eldon in
Lupton
v. White, 15 Ves. 438-454, to have an injunction l,aid upon the whole property thus purchased, in order that they may have the utmost value of their unwilling venture in it. If it could not be ascertained what it cost, the whole of it would be theirs; as in case of the security, in
Panton
v.
Panton,
quoted by his lordship. We do not apprehend, however, that in the case before us, there is any difficulty in this respect; the proof showing the prime cost of the ivory, and the proportion which the balance of the plaintiffs’ bears to that cost, showing the plaintiffs’ interest in it. If that balance had been, as it should have been, paid over to the plaintiffs’ agents at Zanzibar, it would have been, in the ordinary course of their business, invested in ivory or some other produce of that country, and sent to this, for sale. The fact that this agent of theirs, Mark H. Haskell, has, without authority, made a similar investment of their funds, should not deprive them of their chance of profits. They are entitled, therefore, to an election, which we shall require them to make before the sale, whether they will take their proportion of the proceeds of sale of the ivory, ascertained by the
proportion which their funds invested in it bears to its prime cost, or take, from the proceeds of sale, their balance invested in the ivory, with interest from the time of the Parodi’s arrival at Zanzibar, which we believe was, as the proof ascertains, about the 15th of May, 1855.
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Aimes, C. J.
The evidence read to us at the hearing does not permit us to doubt, that Mark H. Haskell engaged himself in the service of the plaintiffs, as their supercargo and clerk, in trading upon the African coast, and at Aden, in Arabia, at the rate of three hundred dollars per year and the expenses of living, until the arrival of the first vessel of the plaintiffs, consigned to him at the latter port; after which, he was to be compensated, by commissions only. This clearly appears, from the memorandum of the terms upon which he was to serve, which he took with him, coupled with the letter of the plaintiffs to him, dated August 9, 1853, and his reply to it from Zanzibar, dated January 12, 1854, before he went to Aden. But, to put the matter beyond doubt, his accounts rendered to the plaintiffs from Aden, embracing his charges for his services from the time of his leaving Salem to join the vessel of the plaintiffs at Providence, to his sailing from Aden, are made up upon the basis that such was to be his compensation ; he charging three hundred dollars per year and his expenses for the time of service elapsing prior to, and during his residence at Aden, until the arrival of the Parodi, (the first vessel of the plaintiffs consigned to him,) and for the remainder of his service there, 2¿ per cent, commissions on her outward cargo sold, and homeward cargo purchased by him, precisely according to the memorandum and letters aforesaid.
By a comparison of these accounts rendered by him, it appears also, that he.admitted himself, upon leaving Aden, indebted to the plaintiffs, as their agent, in the sum of $763.41, which, by his letter to the plaintiffs dated April 28, 1855, he stated was subject to the order of Messrs. Winn & Cheney, the general agents of the plaintiffs at Zanzibar. Now, the only explanation which he attempts by his answer to make of these accounts, is, that at the time he rendered them he anticipated, from -the plaintiffs’ letter to him of the date of September 1, 1854, to be employed, after leaving Aden, by them, through Winn & Cheney, either at Zanzibar or Mozambique ; since, unless
thus
compensated, the plaintiffs would, by breach of the contract of service, be indebted to him in a much larger sum
than the balance of their funds, admitted by him to be in his hands subject to the order of their agents at Zanzibar.
There are insuperable difficulties in the way of this explanation. In the first place, it appears, that he
has
been compensated, and that too by his own retainer from the funds of the plaintiffs in his hands, precisely according to the contract made with him before going to Aden ; and if, contrary to the tenor of his correspondence, he» was disappointed at not receiving more and earlier consignments at Aden, he had no right to be; since no particular amount of consignments were stipulated by the plaintiffs to be made to him as them resident agent at Aden, and his accounts of the state of the market there were discouraging to the last degree. It is quite apparent, that he went to Aden at his own risk as to the amount of commissions he should receive there; that depending, necessarily, upon the opening for the plaintiff’s trade which his own accounts of the market at that place would exhibit to them. There is not the least evidence of want of good faith on the part of the plaintiffs in inducing him to go to Aden ; and if he remained there longer than was profitable, it must have been because he saw no chance of bettering his condition; since his letters, and the memorandum of contract show, the latter that he did not feel himself obliged, and the former that he
ivas not
obliged, to remain there a moment longer than a sense of his and the plaintiffs’ -interests prompted him. In the second place, we are not satisfied, from the proof, looking at the ordinary compensation received by clerks and agents in, that trade of no greater experience than himself, that he has not received all the compensation that he deserved, even if we were not precluded by the contract, and by his accounts rendered, as we are, from looking at that matter in the aspect of a
quantum meruit.
Starting for Aden with this balance of the plaintiffs in his hands, the proof shows, that instead of paying it over, at Zanzibar, to the agents of the plaintiffs’ agents there, as his letter of April 28, before referred to, admits was his duty, he invested it, with other moneys of his own, at Zanzibar and Mozambique, in twelve tusks of ivory, purchased in his own name; and subsequently, upon his arrival with it in the plain
tiffs’ vessel at Providence, entered it at the custom-house here, as his own property. "We say this, because, although his answer denies that the ivory was purchased, in whole or part, with the funds of the plaintiffs, yet the assertion is evidently made upon the false notion that the plaintiffs were indebted to him for services beyond their balance in his hands; since, it is proved, that he admitted to two of the plaintiffs that this balance
was
invested by him in the ivory, and hi§ own cross-examination as a witness shows, that he had not funds enough in hand, without applying this balance, to enable him to make the purchase. He has thus, contrary to his admitted duty, confounded the property of his employers with his own in the ivory purchased, and now, it being with the rest of the cargo of their vessel in the plaintiffs’ storehouse, seeks, under cover of an attachment and levy, eyidently made by his father as his creditor with his connivance, to wrest it from their possession, and to apply it to his exclusive use.
Under such circumstances what is the plaintiffs’ equity ? It is, as exemplified and illustrated by Lord Eldon in
Lupton
v. White, 15 Ves. 438-454, to have an injunction l,aid upon the whole property thus purchased, in order that they may have the utmost value of their unwilling venture in it. If it could not be ascertained what it cost, the whole of it would be theirs; as in case of the security, in
Panton
v.
Panton,
quoted by his lordship. We do not apprehend, however, that in the case before us, there is any difficulty in this respect; the proof showing the prime cost of the ivory, and the proportion which the balance of the plaintiffs’ bears to that cost, showing the plaintiffs’ interest in it. If that balance had been, as it should have been, paid over to the plaintiffs’ agents at Zanzibar, it would have been, in the ordinary course of their business, invested in ivory or some other produce of that country, and sent to this, for sale. The fact that this agent of theirs, Mark H. Haskell, has, without authority, made a similar investment of their funds, should not deprive them of their chance of profits. They are entitled, therefore, to an election, which we shall require them to make before the sale, whether they will take their proportion of the proceeds of sale of the ivory, ascertained by the
proportion which their funds invested in it bears to its prime cost, or take, from the proceeds of sale, their balance invested in the ivory, with interest from the time of the Parodi’s arrival at Zanzibar, which we believe was, as the proof ascertains, about the 15th of May, 1855.
As the respondents are without the jurisdiction, and there is no other security for the plaintiffs’ costs here, we shall direct them to be paid out of Mark H. Haskell’s proportion of the proceeds of the ivory, and the balance only, to be paid over to the levying officer for the satisfaction of the execution in his hands.
We have treated the attaching creditor’s equity in this matter as no higher than that of his son, and debtor. It is evident that he made the attachment after notice of the claim of the plaintiffs, and, in connivance with his son, for the purpose of frustrating it. Under such circumstances, he is in no better condition, in this court, than his debtor; if, indeed, he would have been, had he attached without notice of the prior equity of the plaintiffs.
Unless, as suggested at the argument, the matter can be less expensively arranged' by the parties, we must not only make the injunction against the sale of the ivory under the levy perpetual, but order it to be sold by a master of this court, with directions to apply the proceeds of sale as this decision requires.