The Packet

18 F. Cas. 969, 3 Mason C.C. 334

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: May 15, 1824
• Status: Published

Opinion

STORY, Circuit Justice.

The first question is as to the proprietary interest of Swett & Hammond in the goods in controversy. The proceedings of the master were certainly somewhat loose and irregular, and not so satisfactorily explained as the court could desire. Still the court must, in the absence ■ of all contradictory proofs, take the facts to be as they were stated by the master before the auditors, and reported by them, for he is certainly a competent witness, standing in point of interest indifferently between the parties. The claim of Swett & Hammond is framed so as to present only a general and absolute proprietary interest, and gives not the slightest intimation of such a qualified interest, as is now asserted. There is no pretence to say, that in point of fact they are entitled to be considered as general owners. The memorandum of agreement establishes, in the most satisfactory manner, that Captain Barker is ¿the real owner, and that Swett & Hammond are mere factors and consignees, and that their original interest in the shipment never extended beyond a lien for security of the draft of £1500 on Messrs. Wilson & Co., and their claim for commissions, insurance, and expenses. The draft of £1500 has been paid; and thus the lien of Swett & Hammond, under the agreement, is cut down to the other charges above stated. It is now asserted, that they are creditors of Captain Barker on general account, and claim a title to retain for the balance. Assuming it to be so, they are not at liberty to enforce such a claim against bona fide purchasers under cir-eumstancés like the present. They have never had these goods in their possession, nor the proceeds in their hands; and an attempt to affect this shipment with such a claim is directly against the stipulations in their agreement.

What then is the case before the court? It is the common case of a factor, who is consignee, claiming the property against his principal, and those asserting a derivative title from him. So far as the factor has a lien, he is certainly entitled to the protection of the court But certainly he has no rights beyond that claim. Discharging the lien, the principal has an unquestionable right to dispose of the property in any manner, which suits his own interest or convenience. Supposing, therefore, that the original shipment vested a special property in the factors, and that the investment of the returns by Steig-litz & Co., taken in connexion with the consignment, and bill of lading to the factors also gave them a special property in the goods now in controversy, still Captain Barker had a perfect right, subject to the lien of the factors, to vest the ultimate interest in Messrs. Curtis, Aspinwall, and Upton, in the most absolute manner. They claim as bona fide holders under an appropriation in Cronstadt, and Swett & Hammond cannot be heard to assert a title, as general creditors, to extract it from their. hands. Sitting here for the purpose of adjusting equities between the parties, I should have no difficulty in decreeing, on a proper allegation, that the claim of Swett & Hammond for commissions, insurance, and other expenses, ought to be a charge upon the proceeds in court; but that subject to these, the proprietary interest in the proceeds belonged to the other claimants. It has been said at the argument, that this claim for commissions &c. ought not to be enforced, because the proceeds now in court cannot be traced back to the original shipment to Messrs. Steiglitz & Co., so as to establish them to be the returns of that shipment. But it appears to me, that the evidence clearly establishes this fact. Then again it is objected, that Messrs. Swett & Hammond have now in their possession the policies of insur-ánee on this very property, and are entitled to deduct the amount of their claim from that fund, whenever the loss is paid to them upon the policies. Assuming that they might so do, still if their claim is attached as an equitable lien upon the present proceeds, they are entitled to relief here. They are not bound to wait for a. recovery on the policies. The latter may be an additional security to them; but it does not supersede the. right of attaching their claim to these proceeds. The only point of difficulty in now giving them relief arises from another consideration; and that is the shape of their original allegation as general owners, and not as persons having a mere lien on the property. But as no exception has been taken at the bar on this account, and the argument has been wholly on the merits, I consider it as in effect waived by the parties. It would be harsh, at this last stage of the proceedings, wholly to reject such an equitable claim, or to turn the parties round to institute new proceedings, when there has been a general acquiescence in disposing of it under .the original allegation. If Swett & Hammond had, in their allegation of claim, set up this special interest in the proceeds, I should have thought it proper also to allow them costs; but as they have asserted a general claim only, as absolute owners, which has been successfully resisted, it is my duty not to admit them to costs, for they have failed in the substance of their claim.

In respect to the claim of Pflug to the cordage, if it stood upon the bill of lading alone, there would be strong reason to presume in favour of his sole proprietary interest. But the bill of parcels, and especially the letter signed by Pflug put it beyond any real doubt, that the shipment was on the joint account ■and risk of himself and Captain Barker. He is entitled, therefore, only to a moiety of the proceeds, and the other moiety is to be disposed of according to the appropriation thereof made by Captain Barker.

Let it be referred to a commissioner to ascertain and adjust the claims of the parties •according to these principles. Decree accordingly.