
    
      BRIGGS & AL. vs. RIPLEY & AL.
    
    Appeal from the court of the first district.
    if the con, signor desires goodsbe°f ontheSvai ⅛ net proceeds, and the consignee sells belowthe price mentioned, he damages,
    Tlie’petition stated that the defendants were indebted to the plaintiffs in the sutn of 1637 dollars, which they refused to pay. At the foot of it was the affidavit of Sterling Allen, who styled himself the plaintiffs’ agent, and swore that the & defendants permanently reside out of the state, . , On this an attachment issued, which was levied on the ship Governor Griswold, which was claimed by Seth Grosvenor. The defendants pleaded the general issue, there was judgment ⅞⅜* tlie plaintiffs, and the claimant and defend- ' ants appealed.
    Et appeared in evidence, that in May, 1818, Stockton, Allen & co. of New-Orleaná, shipped to the defendants a quantity of manufactured tobacco, with the following instructions : «It is our wish that on arrival, it. (the tobacco) should be sold, if not more than twelve cents and an half can be had per pound; the net proceeds are to be placed to the credit of Gardner & Center.”
    Gardner & Center drew on the defendants,
    in favour of the plaintiffs for 3500 dollars, at 60 days, on account of the proceeds of the tobacco, which the defendants accepted on the 25th of Juné, and on the 5th of October, they sold the tobacco at 10 cents per pound.
    The ship, Governor Gris wold, was sold by the defendants to Seth Grosvenor the claimant, in New-York, where both vendor and vendee have their domicil, while she was at sea, so that there was no actual delivery.
    Morse, for the plaintiffs.
    The ship was well attached as the property of the defendants notwithstanding the sale to the claimant. As no delivery took place, the sale had not the effect of transferring the property to the vendee, and she was liable to the. attachment of the ere-ditors of the vendor. This point has been frequently determined in this court. Durnford xs. Brooks’syndics. 3 Martin, 222. Norris vs, Mumford, 4 id. 20. Tliis is the rule of the civil law, it is true, but that of the common law is perfectly the same. A grant or assignment of chattels is valid at common law between the parties, without actual delivery of the chattels, and the property passes immediately on the execution of the deed. But, as to creditors, the title is not perfect unless possession accompanies and follows the deed. Meeker ⅜* al. vs. Wilson. 1 Gallison, 419.
    On the merits, we have shewn that our agent consigned our tobacco to the defendants, with. ~ * directions not to sell it for less than twelve and an half cents, that they sold it for ten, so that we lost two cents and one half per pound, which we are entitled to receive.
    
      Livermore, for the claimant and defendants.
    I contend, that the alienation, either by deed or will, of personal or moveable property is to be governed by the law of the alienor’s domicil. Huberus, Praeleetianes juris civilis, tom. 2.1,3. In this case the domicil of both parties to the hill of sale was in New-York, where the common law of England prevails. By the common law it is clearly settled, that the property of a ship at sea, or in a foreign port, will pass by a bill of sale without delivery, in opposition to the rights of creditors. 1 Gallison, 423. 4 Massachusetts Rep. 663. 4 Burr. 2051.
    I contend, that hei’e was an actual delivery of the vessel and that the assignee got possession before the attachment was laid. The bill of sale was lodged by Gardner in the custom house on the 6th of January, and the attachment was laid on the 8th; In leaving this bill óf sale at the customhouse, Gardner can be considered as acting in no other manner than as the agent of the claimant, for whose benefit it was done. And he declares that from the time he received the bill of sale he considered himself as the agent for the claimant in all tilings which concerned the ship. He is also confident that he did at that time receive instructions from the claimant, though the letter is lost. But admitting him to be a mere negotiorum gestor, possession taken by him will benefit the claimant, for whose benefit he took possession, and who has at all events ratified his act. This is fully stated by Cujas, whom Pothier styles juris interpretum praestantissimus. In commenting upon the title de aiquirenda vel omit-
      
      tmda possessione, ff. 41. S, 1, § SO, lie says, Sequiturin hoc § quod jam supra diximus saepe, per procuratorem nobis adquirí possessionem ita demum, si relit nobis possidere, si operam nobis soUs suam accommodét, si, possessionem apprehendat nostro, non suo nomine, et n-an-datu similiter nostro, vel etiam ratihabitione secuta, id est, volentibus nobis, non nolentibus. Scientibus autemvel ignorantibus nobis,voluntas ntístra suffic.it, nee requiritur etiam ut sciamus, procuratorem appreJiendisse possessionem nos-tro nomine. The following law in the Digest is also very strong to this point. Generaliter quisquís omnino nostro nomine sit in posse-sionem, veluti procurator, hospes, amicus, nos possidere videmur. ff. 41, S, 9. This law, and also the commentary of Cujas upon it, are sufficient to support our claim. For there can be no doubt from the evidence, that Gardner intended to act as an agent and friend of Grosvenór, and that he believed he was acting as his agent. Upon the law last quoted Cujas observes, Ha.ec l. docet, nos possidere non tantum per servos filio sf am., sed etiam per hominem liberum, id est', sui juris, si nostro nomine sint in possessionem, veluti per prociiratorem, vel colonum et irtquilinum., per hospitem,, vel ami-cum voluntarium, ut Cicero loquitur, id est, per 
      
      ñegotiorumgestorem, secuta ratihabitione nos* tra- The evidence of Gardner that he had received instructions from the claimant, at the time he received the bill of sale, is strongly confirmed by the letter of Mr. (rrosvenor which is in evidence. In this letter the claimant evidently writes to a man with whom he had previotísly corresponded.
    In the next place, I submit to the court, that the plaintiffs cannot recover, because this action is not supported. The plaintiffs are not entitled to recover, 1st. Because the petition is nsufficient. It is expressly required by law, that the petition set forth the cause of action. It merely alledges that the defendants, are indebted to the plaintiffs, but whether upon bond, bill of exchange, for goods sold, or for slander, does not appear. This objection is conceived to be fatal, either on demurrer, or upon an appeal. This case is different from that of Ralston vs. Barclay ⅝' al. 6 Martin, 619, lately decided in this Court, in that case the objection was not to the petition, but to the evidence as applied to the petition ; and the objection was there made too late, being .alter- all the evidence had been read to the jury, and after the defendants had joined in the commission and put interrogatories to the witnesses.
    The second objection is, that the plaintiffs have shewn no interest in the tobacco consigned by Stockton, Allen & co. to the defendants. The affidavit of Allen was sufficient for taking out the attachment; but is no evidence in the cause. The objection to this defect in the evidence could not appear upon the record, because no bill of exceptions lies to the decree of the judge. The defendants have appealed, aud have assigned as the ground for reversing the judgment of the district judge, that the judgment was for the plaintiffs when it ought to have been for the defendants. If there is not evidence in the record sufficient to support the judgment, it is, of course, erroneous, and must be reversed. The affidavit is merely ex parte, and no evidence.
    3. The defendants have violated no instructions. According to the true.construction of the letter from Stockton, Allen &co.to the defendants, there is no posiiive price limited, within which the tobacco was not to be sold. The direction Contained in the letter is positive only upon one point; to sell the tobacco upon arrival, if not •more than a certain sum can be got for it. Büt the letter does not direct the defendants to hold the tobacco until that price can be obtained. In the absence of positive instructions, the law requires of a factor good faith and reasonable diligence. There is no pretence that these have not, been shewn by the defendants. No .proof has been offered that any damage has been sustained by the plaintiffs, in consequence of the sale of this tobacco. It has not been proved, nor can it be proved, that, from the time of the consignment to the present time a greater price could have been obtained for this tobacco than that for which it was sold. This action is then, in all its features, a.hard action; and for this reason alone, if the letter is at all equivocal, the construction should be against the plaintiffs. Upon general principles of law, a principal, who complains of a disobedience of orders by his agent, is bound to shew that his orders have been precise and unequivocal; and the agent is only liable in case of a direct violation of precise and clear instructions. Here there are no positive direction to sell for less than twelve and an half cents. The most that can be made of it is, that the letter contains a strong expression of the writer’s belief as to the probable price which could be had, and perhaps of his wishes that it should be held for that. This, hqwever, is not clear; and, if it were, it would not be a rule up-oh which the court could decide in favor of the plaintiffs, consistently with the case of Ralston vs. Barclay 8£ al.
    
    The plaintiffs have sustained no damage. There is a difference between the disappointment of rather sanguine expectations and such damages as give a right to an action at law. We contend that some evidence should have been offered to shew that some loss had been occasioned by the sale here complained of; that it should have been proved, that the price of this species of. tobacco has been much higher in New York, or at least there was a probability that it would be higher at some future time.
    Tiie plaintiffs had no right to limit the price absolutely. This consignment was made under an agreement entered into in New-Orleans between Stockton, Allen & co. and Gardner & Center, the agents of the defendants. By this agreement, Stockton, Allen & co. were to have an advance upon the consignment, but there was r.o agreement or consent on the part of Gardner & Center, that Ripley, Center & co. should be limited in the sale of this tobacco. This agreement was entered into by Gardner & Center as general agents of the defendants in good faith, and there is no pretence that they exceeded their authority. Of course, the defendants were bound by their acts, and were bound-to accept the bills drawn by them and given to Stockton, Alien & co. for this auvance. If these bills had not been accepted, the holders, Stockton, Allen-Sf co. ’could hav# recovered damages against the drawers. The agreement was on one part, to consign the tobacco, on the other to make the advance by drawing bills on New York. Nothing was said about limiting the price. Consequently any limit which would interfere with the consignee’s reimbursement, would have been in fraud of the agreement and not obligatory upon the consignee. Something has been said ⅛ the argument .about the respectability of the house here ; but when advances are made upon consignments, they are-made upon the security of the goods, and not of the consignee.
   Martin, J:

delivered the opinion of the court* The plaintiffs’ counsel contends that lie has she vn that the > obacco was their property, that Allen, Stockton & co. were their agents and consigned it to the defendants, restricting them to sell it at twelve cents and a half per pound, and that as they sold it for ten cents, the plaintiffs have lost two cents and a half per pound, which it is the object of the present suit to recover.

As no specific cáuse of action was allnlged in the petition, other than the non payment of an undescript claim, the evidence ought, at least, to have established the plaintiffs’ right to a recovery, the general issue having been pleaded. That the plaintiffs were, in any manner interested in this shipment of tobacco, we are left to ^presume from the* circumstance-of Sterling Allen* having, as their agents,⅞ made: the necessary affidavit, in order to procure the writ of attachment. The conclusion is far from being strictly logical. He might have hecome their agent since the cause of action arose : even for the solé purpose of instituting the suit. Admitting him, however, to have been the plaintiffs’. agent ab initio, does it follow as a necessary consequence-that every transaction and consignment of his is for the account of these, his principals ? AreAl-so all t'ie- transactions and consignments of Stockton» Allen & co. for the account of the plaintiffs? If they be not, how is this /consign-me ut of tobacco to be distinguished from the rest, ?

But admitting all these queries to be properly answered in the affirmative, it is far from being clear that the defendants have been guilty of any, deviation from the orders of the consignees. These gentlemen gave no positive instructions, except th# the sale of the tobacco should not he delayed, if twelve cents and a half could be obtained on its arrival. They do not desire it, that if that price cannot be obtained then, and, after waiting a reasonable time, there be no hope of obtaining that price, the consignees may not sell under-it.

With these instructions the defendants complied. The tobacco was shipped in May, and no sale took place until October. At first, they had been directed to credit Gardner & Center with the net proceeds of the tobacco. After-wards, the consignors procured these gentlemen’s draft, at sixty days, for the probable amount of these proceeds, on the defendants, who accented it. It is true, the consignors’ letter, accompanying the tobacco, communicated their hope that the article being of a good quality would sell well: and the restriction from delaying the sale, if on its arrival twelve cents and a half could be procured, is evidence of the consignors expectation that this price would be obtained. The draft, which was afterwards procured on the defendants, is presented by their counsel, as an evidence of the waiver of any previous restriction as to price. This court is not prepared to say that the draft could be considered as the waiver of any positive direction (if any had existed) not to sell below a certain price, but we are ready to say that when no positive restriction exists, a draft for the proceeds of the consignment, justifies a sale, in order to meet it, altho’ without, it, prudence and the state of the market might demand a further delay.

No allegation of fraud or misconduct in the defendant is made. It is not shewn that the interests of the consignors would have been promoted by a delay, nor, that at any time, till the inception of the present suit or since a greater price could have been obtained.

It appears to us that the district court erred in giving judgment against the defendants. This being the case, that against the party intervening, as a claimant, cannot be supported.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be judgment for the defendants and claimant, and that the plaintiffs and appellees pay all costs in both courts.  