Opinion
12-06-1817
Dunbar v. Buck and Others
Wickham for the appellant. Green for the appellees.
Upon a Bill of Injunction exhibited by Robert Dunbar against Anthony Buck, David Henderson and others, the material circumstances of the case, appearing from the Bill, Answers and Evidence, were the following: --A contract was made in November 1807, between Robert Dunbar of Falmouth, and David Henderson of Fredericksburg, for the shipping of one thousand bushels of corn by Dunbar, in a Vessel belonging to David Henderson and Son, to be carried to the Island of Antigua, and there sold on his behalf. He had the requisite quantity at home, and put on board at Fredericksburg 679 bushels; but, having purchased about 500 bushels of a Mr. John Skinker, whose plantation called the Hop-Yard, lay some miles lower down the Rappahannock, and Skinker having urgently pressed him to take it away, he proposed to Henderson that the vessel should take in the balance of the 1000 bushels, at the Hop-Yard; to which the latter agreed, but said he should expect the Vessel would meet no unreasonable delay. To guard against this, Dunbar on a Saturday afternoon furnished the Captain with bags to hold the corn; and, expecting the Vessel to drop down the River on Sunday, and receive it on Monday morning, sent his agent to have it measured and put on board at that time: --but the Captain, when he arrived at the Hop-Yard, finding the Overseer either absent, or unwilling to deliver the Corn on the Lord's day, proceeded on his voyage without it. When the Captain returned, with the account of sales, a charge was made against Dunbar for dead freight on 321 bushels of corn, as so much not delivered by him according to contract; which charge he considered highly unreasonable, and, on the contrary, contended that Henderson ought to make him compensation for the loss in the sale, occasioned by the fault of his agent the Captain, in not taking on board the full quantity. Henderson insisted on retaining the dead freight, and refused to make good the loss.
A Judgment having been obtained by Anthony Buck a broker, upon a flour contract made by him, (in his own name, but for the benefit of David Henderson,) with Dunbar; the latter, discovering the fact of Henderson's right to that judgment, filed his Bill of Injunction, to stay proceedings upon it, and to be allowed set-offs against it for the dead freight, unjustly (as he alleged,) retained by Henderson, and for the loss as aforesaid.
On his part, Henderson alleged that, when the vessel sailed, the Embargo imposed by Congress in December 1807, was expected, and therefore Dunbar bound himself to have the corn at the Hop-Yard delivered immediately, and without any delay; but this allegation was not supported; on the contrary, was refuted by the testimony. He farther remarked, that another unsettled account existed between Dunbar and him, upon which he was entitled to a balance remaining unpaid.
The cause being regularly set for hearing, Chancellor Taylor dissolved the Injunction, and dismissed the Bill; from which decree Dunbar appealed to this Court.
Decree reversed with Costs, and the cause remanded.
Wickham for the appellant.
Green for the appellees.
OPINION
The following opinion of the Court was delivered by Judge Roane.
The Court is of opinion, that, as the case now appears, the sum withheld from the appellant, as dead freight upon the corn in the proceedings mentioned, as also the amount of the loss sustained by him by the failure to take on board the residue of the corn agreeably to contract, (to be estimated under the direction of the Court of Chancery,) were proper Items to be set off against the judgment in question; and that, although these last mentioned sums were due by David Henderson & Son, and not by David Henderson individually, it is competent to the appellant, in equity, to charge the said David Henderson for as much of the surplus of the partnership property as may be due to him on a settlement of the partnership accounts, in extinguishment of the said debt; for the purpose of which settlement, however, (if required by the defendants,) and also for that of ascertaining and adjusting the existence and amount of the foregoing Items, the son of the said David Henderson ought to have been made a party.
The Opinion of the Court, therefore, is, that the Decree is erroneous in dismissing the bill, instead of having provided for such settlement and adjustment, and also for the adjustment of the private accounts between the parties. The same is therefore reversed with Costs, and the cause is remanded, in order to have the necessary party made as aforesaid, and be further finally proceeded in, pursuant to the principles of this decree.