RANDOLPH

V.

WARE.

The deposition of Grymes comes in a very questionable shape. It speaks of things 30 years ago, and in very uncertain language, But admitting for a moment that it applies to this shipment, Evans had not authorIty to bind his principal by a promise to insure. He did not promise for them, but promised for himself, that he would write to them to make insurance. This, it is admitted, he did not do. Are Farrel & Jones liable for his personal engagement?

But the deposition of Grymes is not only uncorroborated, but opposed by the other evidence in the cause. If the Randolphs relied upon this supposed engagement of Evans, why did they give their bond in 1772, nine months after the loss, and long after they had notice of the loss, for the balance of the account, without demanding a credit for the lost tobacco? Three accounts current were sent them for the years 1772, 1773 and 1774, at several times, and they were requested at each time to examine them, and, if they contained any error, to advise Farrel & Jones of it. By not doing this, they have given strong evidence that there was no such agreement with Evans, that there was no error in the accounts, and that Mr. Grymes must have been mistaken, or that his deposition refers to some other transaction.

PATERSON, J. The complainant filed a cross bill to obtain credit for 50 hogsheads of tobacco, which were shipped on board the Planter, the 17th September, 1771, by Richard and Peyton Randolph, executors of Wm. Randolph, and consigned to Farrel & Jones, merchants, at Bristol, in England. The tobacco was not insured. The Planter foundered at sea, and the tobacco was lost. The question is, who shall sustain the loss? It is contended, on the part of the representatives of the Randolphs, that Farrel & Jones ought to have insured the tobacco, and not having done so, they have made themselves liable to the amount, as if it had been insured. To establish this position, the counsel for the complainan has taken the following grounds.

1st. From the nature and usage of the trade between the Virginia planter and the English merchant, it was

the duty of the latter to have insured the tobacco, and RANDOLPH failing so to do, he is responsible as the insurer.

2d. That Thomas Evans, the agent of Farrel & Jones, having promised to have insurance made, it is equivalent, to the promise of his principals, Farrel & Jones, and they are responsible for the consequences.

As to the first point, no usage has been proved. And if an usage did exist, this case was taken out of it; as it appears by the whole course of correspondence between the parties, that Farrell & Jones never did insure tobacco without orders; and that the Randolphs gave them orders to effect insurances on tobacco, whenever they thought it expedient or necessary.

Great stress is laid on the contract, which it is stated was entered into between the Randolphs and Thomas Evans, the agent of Farrel & Jones. The contract is founded on the deposition of Philip Grymes. This deposition is certainly open to the strictures which have been made upon it by the counsel on the part of the defendant. It does not appear when, and before whom, the deposition was taken. The deposition is ex parte, for neither the defendant or his attorney had an opportunity to cross-examine the witness. If it was taken at or about the time that the bill was filed, then it is liable to the objections resulting from the frailty and uncertainty of memory, and the misconception or misconstruction of words used in a general conversation, after a long period of time, exceeding twenty years. Besides, the quantity of tobacco to be insured was not mentioned in the course of the conversation, nor does it appear, that it was at any time afterwards communicated to the agent; and unless the quantity was ascertained, an insurance could not be effected. How this paper, purporting to be a deposition, became annexed to the bill, I have not been able to discover from the proceedings; and if it be admitted as a piece of evidence in the cause, its credit is much impaired in consequence of the ob servations already made.

The acts of the agent bind the principal; and supposing Evans to have been the general agent of Farrel

V.

WARE.

V.

WARE.

RANDOLPH & Jones, it may well be questioned, whether his undertaking to insure, is obligatory upon them; as it is manifest, from the correspondence between the Randolphs and Farrel & Jones, that the latter did not insure tobacco without express orders for that purpose; that the Randolphs wrote to them to insure, when they deemed an insurance proper. The fair inference is, that if Evans engaged to have an insurance made in this instance by Farrel & Jones, it was a personal contract on his part, which bound himself and no other, and for the performance of which he was responsible in his private character. Orders for insurance were invariably transmitted by the Randolphs to Farrel & Jones, and not communicated to them through the medium of Evans, unless the present should be considered as an exception. Under such circumstances, the Randolphs, if they relied on the promise of Evans, must look to him individually, and not through him to Farrel & Jones. By this promise, Evans bound himself, and not the firm.

The house of Farrel & Jones transmitted annually their accounts to the Randolphs; they did so for the year 1771, after the loss of the tobacco, which it is admitted was not passed to the credit of the Randolphs. The bond given for the balance is dated the 1st January, 1772, though, from the letter of the 4th April, 1772, it was not, probably, executed till some months after its date. It was made to bear date the 1st January, 1772, that it might correspond with the accounts rendered, and carry interest from that period. Farrel & Jones annually rendered regular and stated accounts to the Randolphs of their mutual dealings in the years 1772, 1773, and 1774; and in a letter of the former to the latter, Farrel & Jones particularly requested, that errors, if any occurred, should be pointed out, that they might be rectified. But the Randolphs made no objectionsthey made no mention of the tobacco which was lost, nor did they ever intimate an opinion, that Farrel & Jones were liable for its amount. Why this silence, this acquiescence? The period of the war we will let pass without animadversion, as no dealings or communication took place between the parties. Evans died in 1778. In 1780 Hanson was appointed the agent of Farrel & Jones. It was never suggested to Hanson, that the Ran

WARE

V.

dolphs, or their representatives, claimed an allowance for the tobacco; no intention was manifested to charge Far- RANDOLPH. rel and Jones with it, until an action was commenced on the bond, in 1793, or 1794, when, for the first time, a claim was set up for the tobacco. Mr. Lee has endeavoured to account for this silence and acquiescence, but not in a satisfactory manner; and it is probable that the Randolphs never thought of making any demand, because they were convinced that they had no right to do so, and that they must sustain the loss themselves, as they had neglected to order Farrel and Jones to make the insurance. It was a loss justly imputable to their own neglect or imprudence; or if not, then they intended to stand their own insurers.

Farrel and Jones expressed regret whenever they received no orders to insure; and this flowed from the nature and situation of their accounts and dealings for as the Randolphs were indebted to the firm, in a large amount, it became the interest of Farrel and Jones, that the tobacco should be insured, as it was property intended to be appropriated towards the payment of the debt due to them. The loss rendered the Randolphs the less able to pay, and increased the risk of Farrel and Jones, by diminishing their security. An insurance, therefore, of the property of the debtor, must have been beneficial and satisfactory to the creditor. But this insurance, it seems, the house of Farrel and Jones never thought themselves authorised to make, unless they received immediately from the Randolphs explicit directions for the purpose.

The charge is stale. The claim comes too late; it is brought forward after a sleep of near 30 years, during which period the original parties and their agents have disappeared and are no more. An acquiescence for such a length of time, and under such circumstances, is too stubborn and inveterate to be surmounted. The claimi was put into oblivion; and there it ought to have remained. A court of equity should not interpose in a case of this kind; and, therefore, the decree pronounced by the circuit court ought to be affirmed.

CUSHING, J. concurred.

Judgment affirmed.*

MARSHALL, Ch. J. did not sit in the cause, having decided

FIELD

V.

MILTON.

FIELD v. MILTON.

A certiorari

will be a

W. PINCKNEY, for plaintiff in error, suggested, that the citation had been served, but was not returned warded, upon a suggestion by the clerk below with the writ of error, and prayed

that the cita- a certiorari.

Costs will be

THE writ of error was dismissed for want of jurisallowed upon diction, the parties not appearing upon the record to be a dismission citizens of different states.

of a writ of

error, for want of jurisdiction, if the original defendant be al

so defendant in error.

Campbell, for defendants in error, prayed that the dismissal might be with costs, the original defendants being also defendants in error.

The clerk stated that the practice had heretofore been to dismiss without costs, where the dismission was for want of jurisdiction.

The court directed it to be dismissed with costs,

END OF THE THIRD VOLUME.