MANELLA, V. This letter introduces Menendez as the agent of the PUJALS & CO. plaintiffs, who were principally concerned in the importation of tobacco into Spain, and declares a confidence that the defendant will embrace the business as his own, and execute it with his wonted attention. J. BARRY. After some general observations which relate to the proposed transaction, and which seem to be founded on the idea that the defendant and Menendez are to be associated in the business, the letter becomes more definite. The writer says, "with this the said Mr. Menendez takes an order for 20,000 quintats (of tobacco) to be shipped for this place in seven or eight vessels, and in not less than six, under which condition the insurance will be made here. You will take care to seek captains of fidelity, American born, and that all the crews conform to the most rigorous ordinances. For greater clearness the shipments (las expediciones) will be made according to the following formalities: 1st. You will lade the vessels in your own name, stating that they are on your own account and risk as an American citizen, and consign them," &c. This instruction is followed by ten others, which seem principally designed to conceal the real character of the cargoes, and to facilitate their escape from cruisers. At the close of these instructions, the following words are added: "I refer you to that which the bearer will communicate to you verbally, respecting this business, who is sent on purpose to superintend the shipment (va solo para presenciar la expedicion) and you will, upon the whole, act for the advantage of the interested, taking care to keep this business a secret, in order to prevent a rise in your market, and its being known that it is for foreigners, but always that it is on your own account as an American citizen." In the execution of this commission, the defendant shipped two cargoes, the one on board a Danish and the other on board a Moorish vessel, each of which was captured and condemned as prize, the one by the French, and the other by the English. These shipments were made with the full approbation MANELLA, of Menendez, and it is in proof that American vessels were not, at the time, to be procured. Before the order was completed, the government of the United States, adopted such measures, for repelling the hostile aggressions of France, as to justify an opinion, that open and declared war between the two nations, would soon take place. Under the impression of these measures, Mr. Menendez considered the American name as no longer affording a neutral character to the cargo, and directed it to be shipped on account and risk of Charles Longhy, of Genoa, who was a correspondent of the plaintiffs. These instructions were complied with. The tobacco so shipped, which came safe, was received without complaint; but a large quantity, shipped in the Henrietta, was captured by a British cruiser, carried into Halifax, and there condemned as prize. For the price of these three cargoes this action is brought. The inquiry respecting the two first, will rest, both on the instructions given to the defendant, and on the power of Menendez: that respecting the last, rests solely on the power of Menendez. It is alleged, that the orders under which the defendant acted, enjoined him to employ only American vessels and that in employing those of other neutral powers, he violated these orders. But there is certainly not one syllable in the letter, which contains any instruction to the defendant, relative to the employment of vessels, or which confines the transportation of the tobacco to be purchased, to American vessels. The court thinks it a fair construction of the letter, that full powers, in this respect, were confided to Menendez, and that Barry might counsel with him, but was to comply with his directions. Menendez is declared to be the agent of the plaintiffs, and the full extent of this term is not limited in any part of the letter. He brings with him an order for 20,000 quintals, to be shipped in six, seven, or eight vessels, under which condition the insurance is to be made in Spain. PUJALS & Co. V. MANELLA, V. J BARRY. These are not instructions to Barry; they are commuPUJALS & CO. nications to him of the instructions given to Menendez, so far as was necessary for his understanding the views of the plaintiffs, and facilitating those views, under the authority of Menendez. The order, of which Menendez was the bearer, was for himself, and the degree of aid expected from Barry, is described in the letter. Barry might have been unable, or unwilling to undertake the business. In any event of that kind, the enterprise was not, certainly, at an end; but Menendez might obtain other assistance. From the nature of the case, therefore, as well as from the expression of the letter, the or der was in the possession and power of Menendez, the agent, to whom directions relative to the shipment of the tobacco, in a certain number of vessels, had been given," and who is declared to have been sent to America, for the purpose of superintending those shipments. Having made this explanation of the business confided to Menendz, the letter adds, "you will take care to seek captains of fidelity, American born," &c. Those inquiries, Barry, an American merchant, could make, much. more successfully, than Menendez, a foreigner, and, therefore, was directed to make them. But respecting the character of the vessel to be employed, no agency, on the part of Barry, was necessary, further than to comply with such directions as he might receive, and no directions respecting the vessels to be employed, were given him, because those directions were given to Menendez. The instructions to Barry, to seek for American captains, are founded not upon instructions to employ American vessels, which were given to him, for none such were giver, but upon the instructions which were given to Menendez. They are founded on the idea, that American vessels would be employed; but as circumstances might render the employment of them ineligible, it was reasonable to suppose that some discretion would be allowed to Menendez in this respect; accordingly, the private instructions, as stated in the bill of exceptions, only directed him to employ neutral vessels. The idea that the power on this subject was completely in Menendez, and not in Barry, is confirmed, by observing that in the extended and minute rules, which are, for greater clearness, laid down for his government respecting the transportation of the tobacco, not one sylla V. J. BARRY. ble is said concerning the character of the vessels in which MANELLA, it was to be shipped, a direction which would certainly PUJALS & Co, not have been omitted, had the subject not been confided to the general agent. It is also apparent, from the letters in the bill of exceptions, that the subject was so understood by both Menend: zand Barry. When to these circumstances it is added, that American vessels were sought for at the time, and could not be obtained, it seems to the court perfectly clear, that with respect to the tobacco shipped in the Moorish and Danish vessels, the conduct of the defendant being sanctioned by Menendez, was free from all exception. The claim for the cargo of the Henrietta, stands on stronger ground, because the defendant was explicitly instructed to lade the vessels in his own name, stating that the cargoes were shipped on his own account and risk. On this part of the case, the defendant must seek for a justifica ion in the full powers of Menendez, to vary the orders given to him. These orders have been said to be free from all obscurity, and in themselves they unquestionably are so. Barry could not have doubted the positiveness of his instructions, to ship the tobacco as his own property. The defence he sets up is, that he was justified in conforming to the directions of Menendez, varying those instructions. An examination of this defence, leads to a still more critical investigation of the letter of the 27th of January. It has been already observed, that Menendez is stated in the letter, introducing him o Barry, to be the agent of the plaintiffs, and the bearer of their orders for the tobacco, which was to be purchased. As it was not unreasonable to expect that a person, crossing the Atlantic in this character, would have some discretionary power to change instructions with a change in circumstances, so as to be enabled to adapt his conduct to those circumstances, ready faith would be given to all expressions which would convey this idea; and if no such power was intended, no expressions ought to have been used, which could excite and cherish the idea. The rules stated to Mr. Barry, as those by which his conduct would be governed, are declared to relate to the PUJALS & CO. V. J. BARRY. MANELLA, part he was expected to take in the "expedicion," which the court translate transportation, or conveyance of the tobacco to Europe. One of these being, that the tobacco was to be shipped in his own name, it follows that this part of the subject was included in the Spanish term "expedicion." All these rules conclude with a reference to verbal communications, to be made by the agent himself, who is expressly declared to go to the United States for the sole purpose of attending to this very part of the transaction, "va solo para presenciar la expedicion." This reference to the verbal communications of Menndez, unqualified by any restriction whatever, is a declaration of complete confidence, placed at least in his veracity, by the plaintiffs, and is a full authority given by them to Barry, to credit the representations which he should make. How else is it to be understood? What right could Barry have to say to those who had referred him to the verbal communications which their agent should make to him on a particular subject, that he did not believe those communications? It is argued, that although no limitation is expressed to the credit which Barry was to give to the representations of Menendez, yet it must be necessarily understood, that he could not change those things which were expressly directed; that the verbal communications referred to, were to be conformable to, not subversive of, the written instructions; that on the idea of a power to alter the written instructions, it was useless to give them, and was only necessary to send out Menendez with a full authority to govern the whole transaction. But in the course of human affairs, it is not unusual for a principal to give, in detail, his ideas of the line of conduct to be observed by his agent, and yet to allow a departure from that line of conduct, under particular cir cumstances. It would not have been extraordinary, had these rules, for the conduct of Barry, been followed by a declaration, that in a total change of circumstances, as in the event of America's becoming a belligerent, he was to ship the tobacco, not as American, but as neutral property. Had Barry been the sole agent, this right to exercise his discretion, if intended to be placed in him, would have |