
    
      LYNCH vs. POSTLETHWAITE.
    
    Appeal from the court of the first district.
    if the su⅛ scribing wit"S^out todwritmg1^ th(indeed°wiu’
    
      The petition set forth that, on the 5th of November, 1818, at Natchez in the state of Mississippi, the defendant, by the name and style of chairman of the board of directors of the -Natchez Steam Boat Company, for himself and others composing said company, did covenant and agree to give to the plaintiff the sum of 65,000 dollars for the steam boat Vesuvius, then on a voyage from New-Orleans to Louisville, said steam boat *° delivered at New-Orleans on her return, at which time 15,000 dollars were toAe paid, and the residue in equal instalments, at three, nine and twelve months, with interest at . . . six per centum, and that, at the time ot delivery, defendant should make his promissory notes said €opr instalment-, which should be siga-ed by him, as chairman of said company. Trhe petition then avers an offer to deliver and refusal receive, áüd, that the defendant had refused to pay according to the contract. It prays . 1 " ° ‘ I «7 judgment for the said sum of 65,000 dollars or , . that the defendant be ordered to pay the sum of l⅝000 dollars and to execute promissory notes above stated, and concludes with a prayer for farther relief.
    the ⅞¾⅛0* It maynheUpro ses" by witnes-
    a report . scribed by a witness niay be to weakeif tweenn<wiiate'he signed & what
    a •witness fertile corporation.
    Hearsay is no testimony.
    a member of rated*company *bfor"ite
    «¾ S'"’ uconTract⅛ def termined according to the medyc¿ tI e íd »ng to lex fon.
    
    ^he defendant pleaded, 1st. A general de-njai. ¾(], In abatement, that there were seven-7 J • . ^ ^wo °^ipr Pers°ns (naming them) who were parties »ii h the defendant to the ..contract,.-and w^o ought, to hasvelieen made parties to the, 3d, That the covenants were made by the defen- , . . dam with seventy-two other persons associated in a special and limited partnership, having a capitai stock of 100,000 dollars, of which de-feudant owns but i 000 dollars. 4th. The fourth plea states that the said company are now a corporation. 5th. The fifth plea sets forth the organization of the Nate hez Seam Boat Company, that public proposals were issued on the 1th of January, 1818, for forming a company for the exclusive purpose of purchasing, or building and equipping one or more steam boats, and for raising for that purpose the sum of 100,000 dollars, to he subscribed by the persons forming said company, in shares of 100 dollars each share; that afterwards on the Sliii of July, 1818, the subscribers met, formed rules and regulations, and elected nine directors; that the defendant was elected chairman of said board of directors; that in that capacity he addressed a letter to the plaintiff, offering to purchase the Vesuvius for the use of the company; that a correspondence took place, and that on the f th day of October, 1818, the plaintiff proposed, in a letter to defendant, that the company should purchase from him the steam boats Orleans and Vesuvius, desiring an examination of the Orleans as she was reported to be rotten, and stating that “the character of the Vesuvius was too weii known to need comment.” The an-gwer proceeded to set forth at great length the negociations between the parties, and contended, 1 that the contract w as conditional, and that the company were not bound to receive the boat un» less satisfied with her condition after an examination; that the plaintiff, in his letters and conversations, misrepresented the qualities and condition of the boat; that he represented her to be entitled to certain patent rights which she was not. It further stated, that previous to the execution of the contract the plaiutiff had the subscription list, proceedings, rules and regulations of the company, and that a conversation took place between him and the defendant, in which the plaiutiff desired the defendant to sign the notes with one or two members of the company in their individual names, aud not in the name of the company, and that defendant refused and said he would not be responsible further than his own share! it further charged, that the plaintiff had in conversation represented that the boat would return from Louisville early in December, and that he had in a letter offered to contract for the delivery of both boats on the 1st day of January, 1⅞19, thereby inducing , the defendant to believe the Vesuvius would return sooner; but that she did not return the last of February. It concluded with setting forth a correspondence which took place between the parties in New-Orleans in February, an examination, and that the boat was so defective the company would not receive her.
    The contract produced, upon the trial, was executed at Natchez on the 5th of November, 1918, by the plaintiff and defendant, who described himself as “chairman of the board of directors of the Natchez Steam Boat Company,” and was sealed with the private seals of the ¡parties. By it, the plaintiff did covenant and agree to sell to the Natchez Steam Boat Company the steam boat Vesuvius (now on a voyage from New Orleans to Louis-' ville) with her engine, tackle, furniture, apparel •and • appurtenances of every name and description whatever, and that he, the said Jasper Lynch shall and will deliver the said steam boat Vesuvius to the said Natchez Steam Boat Company or its agent at New-Orleans, in good order, immediately on her return from her present voyage, allowing her a reasonable time thereafter for the discharge of the cargo she shall then have on board. And that he the said J. L. shall and will also at the time of the delivery, &c. mate, execute and deliver a formal conveyance for vesting the title to the said steam boat in said company, arid thereby guarantee and secure the title free of all suits, &c.” Oh the part of defendant were the following covenants. “ And the said chairman, board of directors and company, &c. on their part and behalf do covenant and agree, in consideration of the premises, to pay the said Jasper Lynch for the steam boat Vesuvius, the sum of 65,000 dollars, in manner following, that is to say, 15,000 dollars at the time of the delivery, &c. and the further sum of IS,500 dollars in three months thereafter, and the further sum of IS,500 dollars in six months thereafter, and the further sum of i 2,500 dollars in nine months thereafter, and the further süm óf IS,500 dollars residue of the said sum of 65,000 dollars, in twelve months thereafter, together with interest on the four last mentioned sums at and after the rate of six per cent, per annum from the said time of delivery of the steam boat Vesuvius, &c. Arid also that the said company at the said time of delivery of the steam boat Vesuvius, &c. will execute tó the said Lynch their promissory notes for the payment of the saiá sum of 50,000 dollars, the residue of the purchase money at the times ami in the manner above stipulated, with the interest thereon as above expressed. And also, that they will, at the same time, make, execute and deli ver to the said Lynch, a mortgage of said steam boat as a collateral security, &c.” Fot the performance the parties bound themselves in the penalty of SO,000 dollars.
    From the mass of written and verbal evidence in this cause it appeared, that the steam boat Vesuvius was built at Pittsburgh, in the winter of 1813 and 1814, that she came down to New-Orleans in March, 1814, and from that time until July, 1816, was employed in'the trade between New-Orleans and Natchez. In July, 1816, she took fire and burnt to light water mark, in New-Orleans, having then a cargo on board and bound up. She was hauled up, rebuilt in the most substantial manner, and launched in January, 1817- When launched she was considered, in all respects, as good as a new steam boat. From this time she was employed in the trade to Louisville, and, as appears from the testimony, was considered, until after the contract was made, the best boat on the river. On the 27t!>. of July, 1818, the plaintiff being at New-York, the defendant addressed a letter to him on behalf of the Natchez Steam Boat Company, slating their desire to purchase .the boat as she then stood, and requesting to know the price. The. plaintiff answered that he should be at Natchez in September. On the 10th of October, being in New-Orleans, the plaintiff addressed a letter to the defendant, in wlpch he proposed to sell to the company the Orleans and Vesuvius, and stated his desire that the Orleans should be examined, as she was reported to be rotten, and that the character of the Vesuvius was too well known to need comment. Afterwards, on the Slst of October, he proposed to sell the Orleans for 50,000 dollars, and the Vesuvius for 75,000 dollars, In this letter the plaintiff says, “ These two boats are running under the patent of Robert Fulton, and will, when merged in one stock, both enjoy the right of the exclusive trade between New-Orleans and Natchez, with the additional privilege attached to the Vesuvius to trade under the same right to the falls Ohio. I will sell the boats with all rights they may be entitled to. All questions, in respect to violation of patent rights, are reserved ; though it may not be unnecessary to observe, that until the boats are, in the full and undisputed enjoyment and benefits of the rights insured to them to the exclusion of all others, no claim can be interposed.” This proposition was rejected : but on the 22d of October, the defendant, with William Rutherford and Augustus Griswold, two other members of the company, wrote to the plaintiff, sta- . ting that they were authorized to offer him the following proposals : They say, “ It is proper to premise that the delivery of the boats without 1 * any material injury sustained after leaving this port at the time prescribed is deemed indispensable by the company.” They proceed to offer “ for the steam boat Orleans, with her machinery, tackle and furniture of every description on board, to be delivered on her first return from the city of New-Orleans to Natchez, &c. ⅜5,000 dollars.” And “for the steam boat Vesuvius, now on her voyage to Louisville, to be delivered on her return to the city of New-Orleans with her machinery, &c. as in the case of the Orleans the sum of 65,000 dollars.” This proposition the plaintiff refused to accept ; but in about ten days after he acceded to the terms.
    While the cause was in the district court the defendant made an affidavit, stating the absence of a material witness, by whom he expected to prove, that the original subscription list, proceedings, rules and regulations of the company had been shewn to the plaintiff some days previous to the execution of the contract, and that a conversation then took place, as to the mode in which the notes to be given in payment for said boat were to be executed, that the plaintiff objected to the mode proposed, and stated, that he had no acquaintance with the members of the company, and did not wish to to have to look to them for his money, and pro-jjpSe(j j.p jjje defendant that he, with two others, should sign the notes without any allusion to ¡the company; that the defendant refused tfo do this, saying that he would not become responsible beyond the amount of shares by him subscribed, and, that if the plaintiff' was not satisfied with the security which the subscription list presented, the negociation must close, and, that the contract ¡was concluded and signed some days after-wards. The affidavit, further state^, that previous to .tjhe making of the contract, the .plaintiff had represented the Vesuvius to be “a flue, strong, substantial boat, the best boat on the river. the ne plus ultra of steam boatsthat he represented that she would return to New-Orleans in December. The affidavit further stated, that the company had examined the Orleans fully, before concluding the bargain for her. The plaintiff’s counsel admitted these facts as if sworn to, subject to all objections as to the legality of the evidence.
    The Vesuvius returned to New-Orleans ⅛ February, 1819, having been delayed in her passage up the river by the unusually low state óf the water. Having bfefen unloaded anil put in good orders acccordiog to the testimony of thfe master, Capt. Penniston, thfe plaintiff on thfe 19th of February offered to deliver her to the defendant. Thfe defendant rfefused to receive lifer without a previous examination by compfe-tfeht persohs to rfepoft upon the situation of the boat. After some correspondence betvvfeeh thfe parties, persons were selected to report upOri the situation of the boat and of her engine, but ■With an agreement that the rights of the parties itere not to be thereby affected. After the examination, the defendant refused to receive the boat.
    The report upon the engine was as follows, “We, the undersigned, having been called oh jfey Messrs. Samuel Postléthwaite and Jasper Aynch to examine the engibe of the steam boát Vesuvius, do report as follows : “ The engine and machinery we find perfectly good, but the boiler is inferior to the engine on account of thfe áge, as We understand is SiX yeáis old, But appears tó be Water tight. We find that the cross Abeam On the pistoh Vod is brokeh, but ih chh-s'equence of that they have ordered ⅛ tife W beam to make the engine cfethplfete.”
    (Signed) W. C. Withers.
    Jaines Wilkinson.1,5
    
      This report was offered in evidence ou the part of the defendant, who also called Wilkinson as a witness. He testified that the boiler leaked, but not in an extraordinary manner, and that he considered it a good boiler for its age; that it had been newly painted with lamp black and oil, which might conceal some of its defects. That the head beam had been broken and fished.
    On the part of the plaintiff it was proved, that the defendant was on board the Vesuvius a few days previous to the execution of the contract, that he had then seen the machinery, and had been informed by the plaintiff that the boiler was an old one, that it was the same boiler which had belonged to her before she was burnt, and that, if he did not sell the boat, he should get a new boiler. It was also proved, that, at the time of the examination at New-Orleans, the plaintiff shewed the head beam to the defendant, and said it was the only defective tiling about the engine, and, that he had ordered a new one from New-York, which Was daily expected. The defendant replied, “he did not know that would make any difference, if the engine was otherwise in good order.’* The report, upon the vessel, was as follows — 1st. “¥c find by the examination that, on the starboard side aft, a Majority of M|telf|;tiinbers are defective, on the llgfeoard sid#aft,”'some of her old timbers defect®^ a midship, strtné few of her old middle fultocks defective, her floor timbers are perfectly sound. Sd. It is our opinion, that the Vesuvius lias Sufficient new timbers to render her a safe cargo boat for two years. This is the unanimous opinion of the committee of examination.” Signed,
    Andrew Seguin, William C. Withers,
    Allen Gorham, Charles K. Lawrence.
    One of the persons who signed this report (A. Seguin) had been before introduced as a witness on the part of the defendant. He stated, iliac one third of the middle futtocks were entirely rotten, but that, in the state he found the boat, she might run two years longer and then be hauled up and repaired for five or six thousand dollars. He said that only one half of the boat was examined, but he supposed the other parts were similar. That, if he were to class the Vesuvius, he should put her in the 4th or 3th class. That the old timbers alone were defective, and, that he considered the boat in good order to receive a cargo, and seaworthy, in her present trade, for two years longer. A. Gor-He did not c^sirfSPIfi&re than onte' tenth of the middle futtocks to have been deflfeive. He did not believe she would require lily material repairs within two'years, and, if the boat was his he would not repair her now. When the boat was rebuilt she was cut down to the head floor timbers. The new wood constitutes 2-3ds to 3-4ths of the whole boat. Captain Gale, of die iEtna, testified that vessels built at Pittsburgh would generally require a thorough repair in four years, though some might last five years. W. Withers, considered the Yesuvius sound for her age, and sounder than the Orleans. Several ship masters and masters of steam boats, having heard the reports upon the vessel and engine with a statement of the evidence, deposed that, in their opinion, a vessel, such as the Vesuvius was described to be, was a vessel in good, order; that, to be in good order, it was not necessary that she should be perfectly sound, and, that a vessel might be in good order and have one third of her frame defective.
    On the part of the defendant, several witnesses deposed, that 65,000 dollars would have been a large price for the Yesuvius in Novem* ber last, if she were entirely sound. The value of steam boat£ had since fallen 25 to 33 per cent.-íere uas ⅛⅛⅞⅜⅜⅛ tKé plaintiff in the ⅝?#?-.'., _ /■> ’ . * . Y,_ . « • • court below: the district court being ot opinion that the action lay against the defendant; but, the sum of SO,000 dollars was deducted from the consideration of the contract, and judgment rendered for 45,000 dollars only : the court being of opinion that, from the price agreed upon, the defendant must have bargained for a sound boat, that this price was the best key to the understanding of the term u good order,” and, that SO,000 dollars was the medium between the sum of 15,000 and the sum of S5,000 named by different witnesses as the difference iu value be- . tween a new and perfectly sound boat and a boat as represented to them.
    From this judgment both parties appealed. The record contained all the facts shewn to the district court: with it came up several bills of exceptions.
    1. The plaintiff having produced the contract between himself and the Natchez Steam Boat Company, subscribed and sealed by the defendant, and to which there was r subscribing witness, whose signature and residence out of the state were proven, as well as the signature of the defendant, the defendant’s counsel objected to this paper being read, because it had pot been proven by the subscribing witness. The district court overruled this objection. aniH , . V toe couusellook liis bill of exceptions thereon, i
    
    S. The report of certain individuals, appoint-; ed by the parties was introduced on the part of the plaintiff, and objected to on that of the defendant, and ordered to be read, by the court,' for toe sole purpose for which it was offered, yiz. to lessen the credit due to the deposition of one of these individuals, who had been examined for the defendant. Upon which the counsel took a second bill of exceptions.
    8. The defendant’s counsel put the following⅛ question to commodore Patterson, a witness in- 1 troduced by the plaintiff for the purpose of establishing the soundness of the boat by him. sold to the company : “ If you had contracted for the purchase of a steam boat, in all respects sound and in good order, and a boat had beeir; tendered to you under this contract, with dug third of her important timbers, including her lower futtocks, rotten, would you deem such a boat answering the description in the contract, as being in all respects sound and in good order?” The question was objected to by die plaintiff's counsel and the objection sustained by the court, whereupon the defendant’s counsel took a third mil of exceptions. * ' * ■ _
    ■4. Charles K. Lawrence, being offered as a witness bv the defendant, the plaintiff objected to his being sworn in chief, on account of, his being interested in the cause. On his voire dire, this'gentleman declared that about the 20th of November, 1818, he purchased ten shares in the Natchez steam boat company, and in case the steam boat was declared to be the property of the company, he expected to pay his proportion of the price, as á stockholder. 'Che objection was sustained, and the defendant’s counsel took his fourth bill of exceptions.
    
      5. Samuel A. Bower, a witness of the defendant’s, proceeding to relate what he had heard a Mr. James, clerk of the steam boat say, the plaintiff’s counsel objected thereto, and the objection being sustained, the defendant’s counsel took his fifth bill of exceptions.
    Livermore, for the plaintiff.
    A preliminary -question to be settled in this cause respects the different systems of law prevailing in the state of Mississippi and this state. How far is the common law' of England, which is proved to be the law of Mississippi where this contract was made, to govern the decision, and Trow far are the laws of Louisiana to haveeffect'? We contend, that the nature, validity5 and coSstfuctioa of a contract must be determined according to the laws of the state where the contract is made; that the form of entering into the contract must be regulated by those laws $ that the consequences of any peculiar solemnity in the form, by which the parties obligate themselves to performance, must follow the., contract according to those laws : and that the. extent, to which the parties bind themselves, whether as principals or sureties, as principals or agents, in solido or not, must be determined by those laws. “Quoad quae conCernunt so-lemnitatem actus, seu ejus perfectionem, inspi-ciatur consuetudo loci celebrati contractus; et ideo si ex statuto loci requiratur certa solem niias in ipso contractu, vel si ad subsistentiam con-tractus requiratur solutio gabellce, vel quid simile ; tunc tale statutum debet observari, Head in loco destinatae solutionis non sit simile statu-lum.'’ Peclcius Ziricceus, de jure sist. man. ivj. c. 8. Be Mercatura, 744. 1 Gallisonj 375- The parties are supposed to contract with reference to the law of the place in which they are at the time, and to which fhey owe a local and' temporary, although they may not owe a permanent allegiance.. This* is the doctrine of Hube-rus,part 2, l. i, titi 3^ 1, 2, 5 / of Emerigon, tom. 1. ch. 4, § 8, and of the common law of England. It is the doctrine of all civjliáps, and may be considered as a settled principle of international law. Ipsa questio magis ad jus gen-tiam quam ad jus civile pertineat-.
    
    The counsel for the defendant contended, that this was an executory contract, that if was to be executed in New-Orleans, and that the civil law must govern the construction of it. We answer, that the law of the place of execution applies only as to what shall be a discharge of the contract. Gallison, 375. But, in this case, the contract was executed at Natchez. The plaintiff u covenants to sell and convey the steam boat Vesuvius,” &c. and that he will deliver her upon her return to New-Orleans, and then execute n formal conveyance, &c. In consideration whereof, the defendant covenants to pay certain sums at different times; the first payment upon the delivery. Here was the consent of both parties to the sale and purchase ; and the boat being a thing in esse at the time, and belonging to the vendor, the contract between the parties was an executed contract of sale, and the property in the boat was transferred to the vendee. The (delivery was postponed, and the payment also. But this does not change the nature of the contract. The pui’chasers acquired a property in the boat, although the vendor was to have tno use of her for a voyage$ and if, upon her return to New-Orleans, the price of steam boat9 had risen, instead of falling, they could have recovered her as their own property, upon tender of the price. The plaintiff covenanted to ¿e]jver ⅛0⅞⅛ jn New-Orleans; and if the laws of Louisiana prescribed any particular formalities with regard to the delivery of a vessel, they ought to be observed; but for the construction of the contract we should have recourse to-the laws of Mississippi. The Natchez Steam Boat Company also have their existence in the state of Mississippi; and the nature of that co-partnership, the powers of the acting members, and the extent of their obligations arising from the contracts by them made on behalf of the company, must also be determined by the laws of tliat .state. Of those laws it is a fair presumption that the defendant has some knowledge, and that he knows something of the nature of the co-partnership of which he is a member, as the powers, rights, obligations and responsibilities of its members are defined by those laws. But the presumption does not extend to a y knowledge of the laws of France or Spain, or of the nature of those associations which are styled (i les sociétés anonymesor ules sociétés en commandite
    
    As tp the form of the action, and the proceed ings upon it, however, the cause must he govern- . . ' ’ ’ . . rp. . ed by the laws of Louisiana. I he recovery' ⅛ #1» Sought, and the remedy pursued, according to the lex fori. This doctrine is incon-tésfíble. Communissima enim est distinctio, quod,aut disseriturdé modo procedendi injudicio, ant de juribus contractus, cúi robur, et specialis forma tributa est á statuto, vel á contrahe ntibus, etirt primo casu attendendum sitstatutum loci,in quo judicium agitatur. In secundo verb casu attendatur statutum loci in quo fuit celebratus contractus. Casaregis, disc. 179, «.59. Upon, this ground the defendant’s counsel have said, that the rules of evidence must be according lothe laws of the state where the action is brou ght. To this we willingly accede. These gentlemen profess to have a leaning to the civil law ; and yet they generally cite common law books, and not always books of the best authority. They have given us pleas in abatement, and raised objections founded only upon the common law, and have resorted very freely to the common law upon points of practice, the rules of proceeding, and the nature of the remedy pursued.
    
      Í. The first objection taken by the defendant’s counsel is, that we have not proved the contract in a sufficient manner. The only exceptioa taken to the evidence in the court below- was, that the subscribing witness ought to have heeti examined. This is a common law objeerton, and we answer it by proving that the subserv-ing witness resided without the jurisdiction of the court, and by proving his handwriting. We had no means of compelling the subscribing witness to testify, and he was the same to us as if dead This is a sufficient answer at common law. I refer the court to Prince vs. JBlaclc-burne, S East. 350. Mam vs. Kerr, 1 Bos. Sf Pul. 360. 7 T R. S65. a John. 431. 3 John. 477- But it is now intimated, that this contract should be proved by experts, comparing the handwriting of the defendant with other writings proved to be his. For this, the Civil Code, 306, arf.%aá6, is referred to. We answer, that 41iis mode of proof is only required, when the party formally disavows his signature. In the present case, the defendant has not disavowed his signature, but, in his answer, has explicitly admitted and set forth the execution of the contract by him.
    a. The second objection is contained in a plea in abatement, which states that the contract was made by the defendant jointly with seventy iwo other persons residing at Natchez.
    3. The third objection is? that there is a variance fetween theseOntract declared ón and that , , -iii * -r» ill id; that we have declared against Post*?-.thwaite, and have given in evidence a contract with the Natchez Steam Boat Company.
    V ⅛. The fourth objection is, that the.defendant ⅛ only liable to the amount of 1000 dollars, the sota by him subscribed.
    TlieH^ree objections resolve themselves into this question : Is the defendant personally bound to the amount of this .contract, and can the plaintiff íeco^ir the whole from hito ? If the defendant be answerable for the whole, there is no variance, and'the^bbjection of Want of parties merely formal. It is not founded upon the its of the cause, but upon the form of proced^ ing. Rice vs. Shute, 5 Burr. S613. ' ^⅜⅜⅝|-tracts with partners are joint and several; ejyerf' partner is liable to pay the whole. In what proportion the others should contribute, is a matter merely among themselves. But, in-motions against a partner, upon a partnership <|gbt, the law of England allows the, defendant, in a suit at common law, to plead in abatement, %at ⅛. es the other partners are not joined. If he not plead in abatement, it is a waiver, of ihe^A- ■ •.'■* \! j . ... . i * ¡ • jéction. If the action is brought against £11 the partners and a recovery against all, thepflainfiff may levy his execution upon the sepirate property of one. <r , . n*rely a matter of form. Ml of which shews thatibis ⅛⅜ And these pleas ||⅜..'1⅞ abatement cannot be pleaded with a plea to the merits, and they must be supported by an affidavit. In chancery, one partner may be sued,, alone, provided it be shewn that the others are "•** out of the jurisdiction of the court, as is the c||^ here. Derwent vs. Walton, S ¿Itlc- Mitford, 25. As this objection, of want of parties, only goes to the form of proceefÜng^it is a sufficient answer, that, by the laws of |bis state, where several debtors are bound in solido, the creditor may proceed against either. Civil Code, §7% «pí** 103. Pothier, des obi. n. 270.
    
    0s the defendant liable for the whole ? He e^gcuted the contract under his private seal; and lib admits himself to be one of the company. In either point of view, he is personally liable for the whole. He would be answerable from the manner of executing this contract, even if lie had no interest in it; and if he had executed it in any other mode, he would still have been bound in solido as partner.
    If the defendant*had been merely an agent of % company, and not a partner, he would have been bound by this contract. He fyf ⅜ personally obligated himself by the terms of the deed, and. he has affixed his own seal to it. Jjjgleton 
      vs. Sinks, 5 East, 148. In that case the defendant entered into the agreement, ‘£ for, and on the part and behalf of lord viscount Rokp-by,” and affixed his ow n name and seal to the deed. He was holden personally liable. So where a committee for a turnpike corporation contracted under their own hands and seals, describing themselves as a committee, the^ were held personally responsible. Tibbetts vs. Walker. ⅜ M(iss. Rep. 595. So where administrators of an estate, by proper authority fromp. court, sold the lands of their intestate, and covenanted in tire deed “ in their capacity of admin? istrators,” that they were seized of the premises, and had good title to convey the same; it was held that they were personally responsible. Sumner vs. Williams, 8 Mass. Rep. Í62. The case of Ernst vs. Bartle and, others, 1 John. Cas. 319, was an action of covenant by a clei> gyman against the trustees, elders and deacons of a church. In the deed the defendants described themselves as such, and made the contract “ in the name and with the consent of the members of the church and they promise and bind themselves and their u successors in their respective church offices.” The defendants signed the deed and affixed their seals to it. Upon demurrer it was objected, that the defendants were a corporation, and that the agree- ' ment was made with them in their corporate capacity, and that the suit was brought against them in their individual capacities. The court gay^ a jj. tjoes not appear from the declaration, nor is it shown by the pleadings, that the defendants are a corporation, or capable of being sued as such. The names and additions by which they are described are a mere descriptio personarum, and they l’emain liable only in their private capacities. Without such a construction, the covenant would be nugatory and void; and there is no reason to adopt a different one. They have affixed their private seals to the instrument, not a corporation seal.” In the case of Taft vs. Brewster and others, 9 John, 334, the defendants covenanted as trustees of a Baptist society. They were held personally liable. The court said, “ The bond must be considered as given by the defendants in their individual capacities. It is not the bond of the Baptist church; and if the defendants are not bound, the church certainly is not, for the church has not contracted either by its corporate name, or by its seal.” These cases are conclusive upon this question. For the defendant, the case of Hodgson vs. Dexter, 1 Cranch, 363, has been cited. The case of public agents is an exception to the rule; and» where an agent of the government contracts for the benefit of government, and on its behalf, and describes himself as such, he is held not to be personally responsible, although, in cases of a private nature, it would be otherwise. The, reasons of this distinction are stated by several judges. One reason is, that public policy requires that they should not be responsible, and. that men would not accept offices under government upon the condition of being personally liable. 1 T. R. 17¾, 674. Another reason is given by Chief Justice Parsons, in the case of Tib-betts vs. Walker, 4 Mass. JRejp. 597- “ A case of th|g kind,” he says, (i is not like a contract made by an agent for the public, and in the character of an agent, although it may. contain an engagement to pay in behalf of the government. For the faith and ability of the state, in discharging all contracts made by its agents in its behalf, cannot, in a court of law, be drawn into question.”
    In this contract, the covenants are by the chairman, directors and company, who profess to bind themselves, their successors and assigns. The chairman alone affixes his seal to the contract. The others, therefore, are not bound. But this is no reason that he should not be bound, when he has obliged himself by the terms of the contract. On the contrary, according to ,. , „ . , . . ,, ⅛ the cases belore cited, and upon the principle or the case of Rusenbury vs. Ellis, 3 John. ca. 70-it is alone a sufficient reason for holding him'ré-eponsible. Although the defendant may have had full authority from the company for making the purchase, and, although his co-partners may be hound by the bargain ; yet they are not legally obliged to the plaintiff so as to give him an action against them. Neither the defendant’s authority as chairman, nor as partner, enabled him to execute a deed in their names, so as to oblige them to third persons, and to give an action of covenant upon 'the deed ^gainst them. Harrison vs. Jackson, 7 T. R. S07- Clement vs. Brush, 3 John. ca. 180. Oreen 8f .Mosher vs. Reals, 2 Caines, 25 i. It is, therefore, evident, that the plaintiff is without remedy, unless he can maintain this action. The defendant, however, can sustain no detriment from having his covenants enforced against him. He will ultimately be held to pay only his proportion, for he has his remedy for a contribution against his co-partners.
    The defendant is also answerable for the whole amount, as a partner. Upon this point some very singular notions have been thrown out. Much has been said about special and lit miter] partnerships, and the right to form such • • ' ' partnerships?', also about the species of partnership known in the French law by the name of la société anonymé. A partnership of this descrip-tiott is not authorfeed by the law s of Mississippi. According to the law of that state, the members of an unincorporated company are liable for the debts of the company without limitation. Watson, Partn. 3 Sf 4. The doctrine of special partnerships has no application to the case; for this contract was within the sphere of the association, and as to all contracts within the range of a special partnership the law is the same as in general partnerships. There is not a shadow of pretence for saying, that by the law of England the obligation in sólido is confined to merchants or to general partnerships. The number of partners and the unequal distribution of their interests can make no difference.
    Upon this branch of the case the defendant offers in evidence a conversation, which took place between him and the plaintiff some days previous to, the execution of the contract. This conversation had reference to the notes and not to the contract. It was the plaintiff’s object to have notes which be could have discounted without difficulty; and he also appears to have been in an error;at the time with respect to the . . 1 effect of a note signed in the mode proposed by the defendant. He did not execute the contract at the time, and the delivery of the Orleans was delayed, until the plaintiff had satisfied himself that each of the company would be liable upon those notes. This is alledged as a fraud ! How so? Was the plaintiff the legal adviser of the company? But this evidence merely proves, that the defendant was ignorant of the law, and that lie entered into a contract, by which he became responsible to a greater extent than he supposed. He should have consulted counsel. It is a common rule, that ignorance of law is not to affect agreements, even in equity. 1 Fonbl. 108. Billie vs. Lumley, 2 East, 469. Brisbane vs. Dacres, 5 Taunt. 143. Est hoc*discrimen inter ignorantiam juris et facti, quod omnis ignorantia juris supina est. Cujas, ad l. 3. D. 22. tit. dejur. et fact. ign. D. 22, 6, 2. D. 22, 6, 4. Si quis jus ignorans, lege Falcidia usus non sit, nocere ei dicit epístola Divi Pii. D. 22, 6, 9, 5. Non male tract abi-tar, si, cuín ignorar et fidejussor, inutiliter se obligatum, solverit, an mandati actionem habe-atP Et si quidem factum ignorarit, recipi ig-norantia ej us potest: si vero jus, aliud did-de-let. D. 17,1, 29, 1. D. 22, 6, 7 §* 8. Cu - 
      
      Jas, ad. 1.-7 8£ 8. I). 32, 6. Here, ignorance of law is alledged, to furnish an unjust defence, prod,esse, to excuse from legal liability. There seems to have been ignorance of law in both parties, in respect to this question. The plaintiff considered that the other members of the company were bound by this contract as well as the defendant. He did not advert to the effect of a seal at common law. He seems to have forgotten, that an agent, or partner, could not bind his principal, or co-partner, by deed. If, therefore, either party suffers from the mode of executing this agreement, it is him; and if ignorance of law can avail the defendant, he is without remedy. For this ignorance will not enable him to maintain an action upon the deed against the* company in Mississippi. Domat,l. 1, tit. 18, § 1,16. ' » ⅛
    But the evidence of this conversation was entirely-inadmissible. The rule of law is, that all conversations are merged in a written agreement; and that no parol testimony can bé received to alter, enlarge, abridge, or explain such contract'. To this effect the civil law, which the defendant’s counsel say should govern upon points of evidence,*is explicit and positive. § Pothier, des oil. n. 758,759, 7b§. Ci* vil Code, 310, art. §41, §43, So by the coup* toon law, Mumford vs. McPherson, l John. +18. Pierson vs. Hooker, 3 John. 68. Mog¿ vs. Smith, 1 Taunt. 3⅜6. Rich vs. Jackson, 4 Bro. C. C. 514. Meres vs. Ansel, 3 Wils. §76. rpfrgmpgon vs. fCetcham, 8 <⅜. jfteceipts, and other written instruments standing upon the same footing as mere verbal contracts, may be sometimes explained. But not specialties. The same principle will be found in the case of Clark’s exr. vs. Farrar, 3 JHartin.S’iyQ. The .defendant’s counsel have cited several cases from Phillips on evidence. These ape cases in chancery, in which parol evidence has been .allowed in opposition to a bill for a specific performance. It has been allowed in cases offrapd, surprise, or mistake. But when the courts speak of mistake, as a reason for Jetting in parol evidence, they refer to mistakes of fact, and not of few. The gentlemen can produce no case in chancery, where a party’s ignorance of law has been allowed as a reason for admitting this evidence. * Such aereasen would be contrary to a maxi™ adopted in the common law, without limitation or exception, ignorantia juris non excusat.
    
    In this case it is not pretended, that the cop* tract was drawn up in different terms from the understanding of the parties* pr that any thing has been inserted iy it, which was not known, , , , , „ , . nor that any thing has been lelt out which was supposed to be there. The law must determine how, far the .¡elendant is liable upon this contract; and as the law determines that he is liable lor the whole amount, the object of the parol evidence!, if it cau have any object, is to establish another contract ; a contract for part, instead of the whole. The case of Krumbhaer y§. h deling, 3 Martin, 640, establishes that this cannot be permitted. The court say in that case, that “ uo testimony can be admitted to prove any contract different from that made by the bill itself. But this rale does not preclude enquiry into the consideration, as in the present case, between the drawer and payee.” Tjje parol evidence, in that case, was admitted to prove that no consideration passed between the parties to the bill. But it is a well known principle of the common law, that a deed imports a consideration, and that no averment can be admitted that it was made without consideration. Vroaman vs. Phelps, % John. 177, Independent of this doctrine, however, there was no want of consideration in this case.
    5. The next objection is, that the Natchez: company are now incorporated, and, that they iptenjied ⅛ apply |⅛ ⅜⅞ act of incarpofation, and that this was known to the plaintiff. This ' , objection seems scarcely to merit a serious answer. If thé company had been incorporated previous to the 3th of November, this wouM not jiaye ]jeen (Jee(] 0f the corporation. And it is difficult to suppose that any subsequent act df the legislature of Mississippi can have deprived the plaintiff of his right to enforce this contract.
    6. The next point made by defendant is, that the plaintiff must be in a condition to perform his covenants, and that unless this be shewn, he cannot recover. The counsel alledge that the defendant has not tendered a deed, nor shewn his power to convey a good title to the Vesuvius. In support of their objection they refer to the case of Morgan’s heirs vs. Morgan, % Wheaton, S90. In that case it appeared to the court, ⅜ at the appellees were incapable of making a good title ; and it is evident that if this had not positively appeared on the face of the proceedings the bill would not hate been dismissed. Page 300 of the caseÍ In the present case, the plaintiff did not make a tender of a deed, because the defendant refused to receive the boat, which made such atender unnecessary ; but he has always been able and willing to perform all his covenants. And if the court should have any doubt upon this point, this condition can be made «art of their decree. The plaintiff can make a good title now. Bat he submits to the court, that this title should be made as of the 19th of February, and that all expenses, incurred by the boat since that period, are properly chargeable to the defendant.
    7- The next objection is, that this was a conditional contract. The defendant says, that he was not absolutely bound to take the Vesuvius 5 but that he had a right to examine her upon her return, and if not .satisfied with her condition, that there was no contract. It is a sufficient answer to this objection, that no such condition is contained in the contract. But, if we look to the preceding correspondence, we shall find that an examination of this boat, farther than the examination at Natchez on the Sist of October, was never contemplated by either party, until the defendant found that some plan jnast be devised to free the company from a contract? which was like to be unprofitable. He then attempted to* give this construction to the contract, and to obtain the plaintiffs acquiescence in it. The plaintiff refused to join in the examination, because he saw through this intention; but he did not obstruct tk,e defendant in his examination. The letter of October 22d, will bear no Such construction as the defendant has put on ity 
      añ‘d of tliis be seems to have been sensible from the incorrect manner in which a pari; of this letter Iras been quoted in the answer.
    S'. The next objection is, that the defendant misrepresented the situation of this boat. It is’ said, that be represented her to be a tl fine, substantial boat, the best boat on the river, the me plus ultra of steam boats.” This is mere gene-, ral commendation, such as is made by vendors in áll cases to enhance the price of their commodities, and upon which tile purchaser is to exercise his oWn judgment. Unless there be an express warranty, or fraud, these representations, though false, cannot avoid the contract. Jfecuir vs. Pack-wood, 5 Martin, 300. Quod venditor, ut commendet, dicit; sic habendum, quasi ñeque dictum, ñeque prtfmissum est. Si vero decipiendi emptoris c:>usa dictumtest: ceque sic habendum est, ut non nasea fur adversus dictum promissumve actio, sed de dolo actio. 1). 4,3, Stf. Inpretio emptionis et venditionis natura-Uter licere contrahenfibus se cyrcumvenire. D. <f, 4, 16, 4. Ea, quae co,mmendandi causa in venditionibus dicuntur, si palam appareant, venditorém non obligant ; veluti, si dicat ser-vum speciosum, domum \em mdificatam. If. tS, i, 43. If. Si, 1, 19. Ptithier, de vente, n, ⅞§¾. Jfomat. 1. 1. tit. %.% 11. n. i%. ⅛ common law goes much farther. Although the representations are material and false, yet if there has been neither warranty nor fraud, the vendor is not answerable. If there has beén no warranty, it must be proved that he knew at the time that his representations were false. Snell vs. Moses, 1 John. 96. Pefry vs. Miron, 1 John. 129. Mumfordvs. MíPherson,í John. 414. Bayard vs. Malcolm, 1 John. 421. Holden vs. Dakin, 4 John. 121. Chandelor vs. JE of us, Cro. Jac. 4. Is there any pretence here to charge the plaintiff with fraud ? It is not even alledged in the answer. The captain, pilot and engineer of the boat have been examined, and the defendant’s? counsel have not even ventured to ask a question relative to any particular knowledge of the plaintiff of defects in the boat. Fraud is to be proved, and not inferred from argument. Dolum ex indiciis perspicuis prohari convenit. Code, 2, 2t.fi. Where the fact is of such a nature that the vaud§r could not be ignorant of it, as of the yearly rent of an estate, he will be bound by his affirmation. But in this case the vendor h sd no more knowledge than the Vendee. But these represfeotatiqns have been fully proved. That the Vesuvius was a fine, substantial boat, and the best boat on the. river on the 5th of November last, has been Proved by the testimony of Ogden, Gorham, Story, Withers and Patterson. Has the defendant attempted to prove that there was a better jj0atp A.nd js not this a confessiou on his part that the Vesuvius was the best? That she was a strong and ¿substantial boat is proved by .A* Gorham. We have not, indeed, attempted to shew that she was the ne plus ulira of steam boats. This was not, in fact, said by the plaintiff, although it is admitted. He represented to the defendant that the engine was upon the best plan, and that it was the ne plus ultra. But if he had represented the Vesuvius to be a 74 guu ship, when she was before the eyes of the purchaser, would this representation bind the vendor? It is gbjected, that the boiler was not as good as that of the Orleans, that one was of copper and the other of iron, We answer that the boiler was exposed to view, and that the defendant might have examined it. Also that the plaintiff gave full and fair information as to the boiler.
    9. The plaintiff is next charged wi.th having represented that the boat would return in December. In the answer, the defendant states, • - -v 7 that tne plaintiff offered to contract for the de~ livery of both boats on the first of January. Why was not this offer accepted ? The defendant made his o . n calculations and preferred taking the chances i'lfe cause of the Vesuvius not returning sooner is fully explained by Captain Peuniston, and by Ryan. There was no fault on the part of the plaintiff, or his agents. The cause is to be» found in accidents beyond the control of the plaintiff.
    10. The next allegati(& is, that the plaintiff’s letters contain misrepresentations respecting certain patent rights. The answer is. that every thing said ' ,'hi this subject is strictly true, and has not /Seen Controverted by any testimony* whatever. „ *
    Upon the Hiree last objections it is sufficient to observé representations, even if false, cannot Affect this contract,; S John. 177, and that they are take»to be true, unless proved to be false.
    11. We s’ next consider the only question of importante in this case. Was the Vesuvius when tendered to the defendant, in the condition in which the plaintiff covenanttd to deliver her; or was her situation so materially ‘different, that the district judge was right in making a deduction of 20,000 dollars from the price agreed upon? The objections, made to the good order of the boat, relate to the head beam of the engine, the boiler, and certain parts of the frame of the boat. In all other respects itis admitted she is in good order. As to the head'■beam,, we refer to the testimony of Captain Penniston, Griffiths and Briggs. It is true that Captain Gale says, he would not make another voyage with a beam broken and fished. But’he had mkde one, voyage to Louisville, a voyage of eight times the duration of a voyage to Natchez. , The Vesuvius, also* had made her voyage up $nd down with this beam broken and fished. But the defendant was hiuiself satisfied, that †⅛™-objection, was too trifling and captious, to N líia¡ 'sted on. lie said^that, “if that was the mly defect in the engine it would be of no consequence, a§ another beam was soon expected*1^ ^jiere was no other defect in'the engine ; f-fid a ne]y beam was received from ¾⅜ ew-York in a few days after, and ;was on Board the boat when the trial commenced in the court below-ou Upon this point, parol evidence is admissible ⅛ either to shew an agreement to enlarge the time of performance ; or to s^ew an admission of the defen?-dant that the plaintiff had performed. Keating vs Price, 1 John. Cas. 33. ^Fleming 'vs. Gilbert, 3 John. 538. If it had not been* for (his* acquiescence, the plaintiff might have had his* beaifi welded. But the arrival of a new beam is a conclusive answer. .The oltl béhm, was broken, without any fault on the fyart of the plaintiff, in the course of the voyage up the river. The captain iniormed the plaintiff, and sent on a model of the beam. The plaintiff immediately sent to New-York for a ne« one. Nothing more could have been done; for a beam of that description could not be procured in the, w ester# country nor here.
    The boiler is not new; but it is in good order. Whatever defects it may have had, they were knows#.ty the defendant. Upon this, he had full information from the plaintiff', that the boiler was *sufficient for the present, but, that it was old, and,.if he kept the boat, it was his intention to have & new one. , ,
    The state of the hull is the next subject to considered. I refer to the report, and to the evidence of Gorham, W thers, Seguin, furrows, captains Hart and Toby, and commodoi^ Patterson, All of these Witnesses swear to the good order of the boat,* some from actual survey ; ethers from having the repoft read to them, and from a fair description according to the evi* dence. The witness* upon whom the defendant chiefly relied in the district court, was A. Seguin. Whether his testimony agrees with the report which he, signed, the court will judge. The report says, that “ a few of the old middle futtocks amidships are defective, that a majority of her old timbers aft are defective, and it finds no defect forward.” The new timbers are all sound.
    The district judge has decreed a deduction to be made from the plaintiff’s claim of SO,000 dollars : because he says the boat was not in that good condition that she ought to have been in. “So sound a price must require a sound hull,” This price he considers as the “ key” to the meaning of the words “good order.” This is a new rule for the construction of agreements. A notion once prevailed in England, that upon the sale of a horse, for a fair price, and without an express warranty, the law*implied a warranty that the horse was sound. Even this notion was not sanctioned bv judicial decisions, and when it came to be sifted, it was found to be so unsatisfactory a rule of decision that Lord Mansfield Rejected it. ¾ East, 3SS. JBut, even this notion was confined to the sale of horses, an animal peculiarly liable to latent defects, which render him wholly useless. This doctrine of a sound price has at all events been limited to sales by parol, and has not before been called in aid to assist in the construction of a deed. The case of Oecuir vs. Pacleicood, 5 
      
      Martin, 300, is a decision of this court in direct opposition to the doctrine of a sound price. So is the case of Parkinson vs. Lee, % East, 314, in the court of king’s bench in England. The case of Seixas vs. Wood, 2 Caines, 48, is a direct decision of the supreme court of New-York to the same effect. The rule of the common law is laid down by Forblanque, 109, and the justice of it is ably vindicated by that author in page 871 of his notes to the Treatise of Equity. The books are full of cases to the same effect ; and we find nothing but some vague notions of Professor Woodeson and Doctor Cooper to the contrary. Neither of these authors have even been considered as of great authority. If their notions are to be admitted, then the whole doctrine of express warranties, upon sales, becomes nugatory.
    The defendant’s counsel, however, profess a partiality for the civil law upon this point; and we have no objection to gratify them, by considering it according to that system of law. Taking t hen the civil law for our guide, we shall endeavour to shew that the decree of the court below is neither warranted by law nor by the evidence in the case. Although we are of opinion that the lex loci contractus ought to govern this contract, we have no objection to resort to that ^reat mine of equity and natural justice, ,⅝ ' ' n 4 ' : . 7 * to which the lawyers of all modern nations have had recourse, the body of the Roman law.| The actions de redhibitione qmnti mindri^ are given by the edict of the rediles ; andall 1⅛⅛1| principles of law, which have been adopted ini France ánd Spain in relation to those aCtiojisjM have been drawn from the commentators hp<ii|« that edict. We do not deny that a purchaser S may avail himself of the equity of the actio qivn ti minoris as a defence to the actio venditi; because we are not disposed to deny the author* ity of Cuj ¡s, and because we believe that ⅛⅜¾ reasoning is good.
    The first principle of the Homan law to which we shall call the attention of the court is. tha^ a con’ract of sale is not r<> lie defeated; on account of any inconsiderable defect in the thing sold. Res bona fide vendita propter minimam causam inempta fieri non debet. D. 18. I. 51. to the same effect. Dig. 2í. t. 1. 8. Were there such defects in this boat as to render her unserviceable ? Quod, iisum .aimsterium que hominis impediat. The principle of the Roman law, adopted by the nations of modern Europe, is that the defect, which will entitle the purchaser to the actior de, redhibrfione vel quanti minorisf must be of such a nature as <o render the article wholly useless for • purpose for which it was bought, or so material that the vendee would not have purchased it at so high a price, if he had known of the defect. Qiii fortasse, si hoc cognovissel, vel emjpturus non esset, vel minoris empturus esset. Dig. 19, 1, 39 The defendant has stated that the Orleans was examined before the purchase; and it is in evidence that the Orleans was much more defective than the Vesuvius. The company took the Orleans after the examination, being of opiuion that she was sufficiently strong to run for one or two years without repairs : and because they knew what she had done, what the Vesuvius had done, and what the Washington had done; that they had cleared their cost in little more than a year. They calculated upon doing the same ; and considered that their bargain 'tíould be a good one although repairs would afterwards be required.
    Were there defects in this boat so considerable as to entitle the defendant to a rescission of the sale or reduction of the price ? And were those defects so considerable as to entitle him to a redaction of 820,000 ? It is fully proved and is not denied, that all the. new wood is sound. The new wood forms from two thirds to three fourths of the hull of the boat. Take tlfe lowest estimate, and there remains hut one third of the old boat. Of this old part of the boat the floor timbers form at least two thirds and indeed nearer three fourths. These are perfectly sound, leaving one ninth of the boat for the part complained of. So far the calculation is undisputed. Then, if we take the evidence of Á. Seguin, there is but one third of this one ninth defective. So that by this calculation, the most unfavorable tó the plaintiff,, there is but one twenty-seventh part of the hull of the boat defective. But if we take the evidence of W. C. Withers and A. Gor-ham, that the boat is sound forward, that one third or two fifths of the lower futtocks amidships were new, and that of the buttocks or timbers aft, where the greatest defect was found., among the old timbers, the old timbers were but one third of these timbers, and that here the old timbers were not all defective, but “ a majority*’ of them, as is stated in the report, the defective part of the boat will be found to be much less considerable, and indeed not more than one ninetieth of the hull of the boat. Is not this an attempt to invalidate a contract of sale propter minimam causam ?
    
    The decree of the district judge has given an importance to these delects which the evidence does not warrant. His calculation is founded upon the evidence of Capt. Gale, Capt. Rogers, and B. Story. These gentlemen Know nothing of the state of the boat, except from the description of the defendant’s counsel. How far this is a correct description, the court will judge from the question put to Story and the answers of the other witnesses to a similar question. This question supposes two thirds of the important timbers of the boat, including the middle futtocks, to be defective. The most important timbers of a boat are the stern post, the stem, and the floor timbers, all of which are sound. One would naturally suppose from this ques-n, also, that all the middle futtocks were rotten, whereas but a small portion of tliem are so. At all events the witness would suppose from thi§ question that one third of the boat was rotten, instead of one twenty-seventh or one ninetieth. In answer to this question, Story says, that he thinks 15,000 dollars would be the cost of making the boat perfectly new and sound, including the loss by detention. Another witness says. SO,000 dollars, ¿nd another 25,000 dollars. Upon testimony of this description we have a decree deducting 20,000 dollars! This was taken as the medium. In medio tutissimus ibis. And this is in the face of all the evidence of those who had seen and examined the boat* Even in faqeof the evidence of A. Seguin, the favorite witness of the defendant. In the earnestness of his zeal, he did not think that more than 5 or 6000 dollars would be required to repair this boat, after she had run two years longer. It is true, that when he is specially sent for by the judge, his views enlarge, and his estimate is raised to 8,000, including detention. Two years hence it is to be supposed, that thisujf boat will be more rotten than now ; otherwise it will not be necéssary to repair her then.* And if she is then more rotten, the expense of repairs will be increased. So that, for th%ipke of A. Seguiu’s consistency, we must supp the 8,000 dollars to have reference to that time, and not to the present. At this time she does not require repairs. A. Gorham says, he wquld not repair her now if she belonged to him. And so long as a vessel is a safe cargo vessel, it would certainly be very bad policy to haul her up and repair her, whenever a defective timber is discovered. If we are to credit the testimony of Captains Hart and Toby, as to the common condition of vessels, such a course of proceeding would certainly render this a very burthensome species of property. That the defective timbers in this boat do not detract from her strength is proved by the report, which represents her to be safe tor two years ; and also by the testimony of Withers that 'wherever a defective timber .,w*sfound, there was a sound one by the sideof it. ’.I-Another principle of law is, that the defect complained of must be one, of which the purchaser was ignorant when he made the contract. JVemo videtur fraudare eos, qui sciunt et consen-Hunt. D. 50, 17,145. To this point the authorities are abundant. We shall cite a few of them. 1). 48, 1, 43,1. D, 18. 1, 45. D. 81, 4, 1, 6, B. 81, 1, 14, sec. ult. D. 81, 1, 37-J). 81,4, 48. Pothier, de vente, n. 207, §09. The same rule prevails at common law. If the defect is apparent, or if the purchaser is informed of it, even an express warranty will not bind the vendor. Schuyler vs. Russ, 2 Caines, 202. An extention of this principle, or an application of it, is that parties are not admitted to alledge ignorance of notorious facts, or of facts which they might have learnt upon inquiry, or by the mere exercise of their own reason. Ignorantia supina scientiae comparatur. This principle is clearly and precisely stated in the 2%dboolc of the Pandects, tit. de juris et facti ignorantia, l. 3, §. 1, l. 6, & l. 9, §.■ 2, also by Cujas, ad l. 3, h. t. Cujas says, Emptori prodest ignorantia, quae non in supinum hominem cadit : ut si ignorans 
      
      emat servum morbo sum, hoc casu habet actionem redhibitoriarn. Item, si ignorans emat liberum hominem, habet actionem in duplum. Item, emptor ignorans emat rem litigiosam, evitafé poenam litigiosi contractus. Igitur justa ,. et: probabilis ignorantia facti non nocet, supina nocet. Supina est, si omnes in civitate sciant rem litigiosam esse, ipse solus ignoret; igno-rentia prope dolus est, id est, affectata videtur. To the same effect are the cases put by Domat, liv. i, tit. 2, ⅜ 11, n. 11. Si les defauts de la chose vendue sont tels, qué Vacheteur ait pu les connoitre 8( s’en rendre certain, comme si un heritage estsujet á des debordemens, si une mai-son est vieille: si les planchers en sont pourris ; si elle est mal bátie, lfácheteur ne pourra se plaindre de ces sortes de defauts, ni des autres semblables.
    
    We will apply the evidence to these principles of law. It is a notorious fact, that it is only about seven years since the first attempt was made to navigate the Western rivers with steam boats; and that the Vesuvius was the second boat built at Pittsburg under the patent of Fulton and Livingston. It is proved by Ogden, that she came down the river in 1814, and, that from March, 1815 to July, 1816, she was employed in the trade to Natchez. During this time she beloved to a company. In 1816 the plaintiff entered into an agreement with this company, by which she was to become the property of certain persons iu New-York, for whom lie was a^ent Immediately after this, she took fire at New Orleans and was burnt. Theplain-tiff’ immediately made a contract with A. Gor-liam to re-build her, and when rebuilt he was obliged to take her as his own property, his constituents having disavowed his contract. She jvas then put into the Louisville trade, and employed to great profit until the time of making this contract. She made many remarkable passages, and acquired a reputation beyond that of any other boat on the river. The defendant and his co-partners, being well acquainted with the history and character of the Vesuvius, were desirous of purchasing her. The plaintiff being in New-York, the defendant addressed a letter to him, dated July 17, 1818. It is evident, from the terms of this letter, that the defendant well knew this boat and that he was satisfied with her. He proposes to purchase her as she then stood, without representation and without warranty. lie asked for no information relative to the age, situation or qualities of the boat; because he knew, or thought he knew, sufficient upon these points. But he -did not know that tile plaintiff s disposed to sell, nor whaf price he would demand; To these points, therefore, his enquiries were alone directed. From the whole of this statement, is not the inference irresistible, that the defendant and his partners, constituting the greatest part of the merchants of Natchez, were well acquainted with the age of the Vesuvius? That they knew when and where she was built? When and where she was rebuilt? And what proportion of the old boat was left ? W hen the committee were on board at Naichez, we find that this burning was spoked5 of as a thing well known ; that the plaintiff told' them that the boiler was the same as had been in the boat before she was burnt; and that one of the committee even informed the plaintiff of the precise month w hen she was launched at New-Ot leans. Is there not also sufficient here, from wiiich a jury would find that the defendants ■was acquainted w ith the extent of the repairs, , and of the proportion of the old boat which remained? She was burnt on the river, and, of course, when the fire extended to the water’s edge she would sink. As she was then but lit-tie more than two years old, the proportion of her defective timbers could not be very great,- and there could be no reason for not using the sound ones, The distinction betw een rebuilding from the keel,and repairing from light, watermark, hardly deserves a serious answer. A. Gorham considers her to have been rebuilt and made as good as a new boat. Bu' if the committee at Natchez had not been thoroughly informed upon this subject, would they not have made some inquiries of the plaintiff? And is not the circumstance, of their not inquiring as to the extent of the repairs, conclusive evidence against them?
    Having then established the fact, that the part of this boat complained of was more than four years old at the time of sale, and nearly five at the time of the examination, and that all this was known to the defendant, it merely is necessary that we shew her to have been a sound boat for her age, and we have completely demonstrated this part of the case. Withers expressly swears, that he considers the Vesuvius to be sound for her age. Captain Gale says that boats built at Pittsburgh will generally require a thorough repair in four years, though there may be boats that will last five years. Captain Toby says there are very few sound vessels, and they are not always perfectly sound when launched. Was not this boat then sound, in comparison with vessels of her age ? Part of her hull was more than four years old ; and the residue more than two year? old when she was examined 5 and yet experienced carpenters report that she will not require repairs for two years to come. Possibly, in strict construction, a vessel cajinot j^e cajje(j soun!]? which has any rotten timber, however immaterial; and such seems to have been the understanding of the witnesses ; though Judge Washington makes a distinction between a vessel being unsound, and having some of her timbers unsound. Watson Sf Hudson v. Lis. Co. J\T. .2.. 1 Condy’s Marshall, 159 K. b. This question might be material, if there was an express warranty of soundness. But certainly' the extent, to which the gentlemen attempt to push the doctrines of the civil law, is entirely beyond all bounds of reason. They would render the principles of that law, so just and equitable when properly understood and limited, utterly wild, extravagant and dangerous. They would establish a principle, which would operate to the subversion of all contracts of sale. For nothing is perfect in this world. Good and bad are relative and comparative terms. An old boat, or an old house, may be a good boat or house; but they are not so good, or capable of enduring so long, as the same boat, or house, when new. And yet they may equally be the subject of a contract of sale, according to the civil as well as common law ; for the Roman la a is too per feet a system of equity to invalidate a contract of sale, on account of defects which are usual, and to be expected from the known age, situation, or employment of the thing.
    The plaintiff covenanted to deliver tips boat (i in good order,” within a reasonable timé after the discharge of her cargo at New-Orleans. Did he not offer to deliver her in good order ? Have not all the witnesses sworn that she was in good order? What do these terms imply? Is there no difference between the terms good order, and perfect order, or the best possible order P Certainly the term good is not a superlative, and the term order is not an absolute, but a relative term. An old vessel may he in good ordei-, although she may have defective timbers ; for a vessel must be in good order, to be seaworthy ; and a vessel may he seaworthy and yet unsound in many of her timbers. Such is the natural meaning of the Avoi ds, and such is the common acceptation and understanding of them. Com. Patterson is of opinion that a vessel is in good order if not more than one third of her frame is defective. Her frame includes the floor timbers, top timbers, upper, middle and lower futtocks. Here the de-feet is not moi’e than one twenty-seventh, ac- , . * -, cording to the defemlanvs witness, ami one ninetieth according, to the plaintiff’s. The understanding of Com. Patterson, and of all the other witnesses, is that a vessel is in good order, when she is in a condition to receive a cargo and perform her voyage. It seems to be admitted, that the word is commonly understood in inift manner, and that it is the true meaning in ati cases, except when made use of in a contract of sale. Upon what principle ol law is a different rule of construction to be adopted in a contract of sale from the ordinary rule? Words are to be understood in tlieir natural and ordinary meaning; terms of art are to be understood as used by persons using the art. These are rules for the construction of all agreements. Can “ good order,” as used in this agreement be considered a warranty, of soundness ? Orean it have reference to any defects existing at the time ? The words do not apply to the sale, but to the delivery^. The boat is sold as she is, without warranty, and the property transferred to the purchaser; but she had' left the port where the contract was made, and was not to be delivered until her return to New-Orleans. What was to be delivered? Was it a different thing from what the defendant had purchased ? Was it a boat absolutely perfect and sound? Was’ it a covenant, that the plaintiff would cause her to be hauled up on the stocks, thoroughly repaired and made as good as new ? Was it intended, for the purpose of invalidating the contract of sale, on account of defects then existing in the boat, ami which both parties must have known, if they had exercised their reason at all, did then exist ? Does not such a construction lead to an absurdity ? And is it not therefore to be rejected ? These words were inserted with a very different view. The intention and effect of them are to bind the plaintiff to a degree of responsibility, to which lie was not bound by the general rule of law. After the execution of this contract the relation between these parties was that of a lender and borrower; and independent of the words “ good order,?? which were interlined in the deed in the plaintiff’s own hand writing, lie would have been answerable for no higher diligence in taking care of the defendant’s property than is prescribed by the law upon the contract commoda-tum. This merely obliges him to strict diligence, but does not make him liable for casualties. Or perhaps more correctly speaking, he would have been only liable as vendo» remaining in possession after the sale by consent of the vendee. In this character he is liable only for ordinary care. Pothier, de vente, n 54. If the boat had been wholly lost, the plaintiff could not have recovered the price; because the delivery is made, by the deed, a condition precedent to the payment; and where a condition precedent becomes impossible by the act of God, the covenant depending upon it is void ; in which respect such a condition differs from a condition subsequent. But provided the boat returned to Jsew-Orleans, although greatly damaged and deteriorated, provided this damage were caused by accidents beyond the plaintiff’s control, and not by his fault, or the fault of his agents, he might have tendered her in the situation in which she was and have demanded payment. If these words, “ good j order,” had not been inserted in the contract, the plaintiff would not have been obliged to repair any such damages. The object of the defendant, therefore, was merely in pursuance of what had been declared by him in his letter of the 22d of October, and also to have the boat in such a condition when delivered, that she might be immediately employed. The boat sustained no injury, between the execution of the contract and the. offer to deliver, through thé plaintill’s fault; and lije only injury sus-tuned by accident has been repaired.
    
      12, The last point made on the part of the defendant was, that our prayer for relief is not *■ ** sufficiently definite. I have strong doubts ‘Whether any further prayer is necessary than fee general prayer for such relief as the equity of the petitioner’s case may require. But in this case we have prayed for the, price of the boat, sixty-five thousand dollars, and our general prayer will certainly cover the interest. We do not pray for the whole sum at this timé, because it is not due ; but we ask that it- may %e paid at the times and in the manner stipulated for in the contract. It is said, that we must either Sue for the penalty of twenty thousand dollars, or, for a performance, and that we cannot .lire for both. We do not sue for both. We She upon the contract. Twenty-seven thousand, five hundred dollars are now due with interest; The balance the deféfedaní is bound to pay by* instalments at six, nine, and twelve months from the time the plaintiff offered to deliver the boat, with interest at six per cent. And for these payments, he is also bound to give his notes in the form expressed in the contract, and »lso a mortgage as collateral security! In the case of Decuir vs. Pmlcwood, 5 Martin 30⅝ the, sugar was payable by instalments; and the' action was brought before either instalment became due.
    Several bills of exceptions were taken by the defendant’s;-counsel-in the court below, which ! hardly deem it nepessary to notice. If-the loose conversations and letters of a witness are good, evidence to discredit him, when they are inconsistent with his testimony, á fortiori .a. sotaní* report, signed by him immediately after an examination of the thing, may be admitted to prove, that he has certified to a statement different from what he has represented upon oath. The question put to commodore Patterson was obviously improper. It did not apply to the cointract; for the contract was not for a sound boat. Nor did. it apply* to the evidence, according to which the h@at is not in the situation which the question jsuphoses. A further objection to this question is* that it required the opinion of commodore Patterson upon a question-of law. C aptain Lawrence was interested and incompetent; since lie expected to pay his proportion of the price in the event of a recovery. I should consider it disrespectful to the court to notice the fifth bill of exceptions.
    - Such are the objections made to our right of recovery. If the conduct of the plaintiff Jba$. Hot been distinguished for good faith in the Whole oi tbis transaction, we do not ask a judgment. But if the exceptions taken by the de-femlaut are merely frivolous and captious ; if they are merely devices intended to worry the plaintiff into an abandonment of his rights, and to relieve the Natchez company frdm a contract, which is not found to be so advantageous as was supposed in November last; we trust thejudg-mentof the court wilfgive a useful lesson to purchasers not to sport with their faith.' When this bargain was made, the advantage was supposed to be on the side of the purchasers. In the proposition which the plaintiff submitted to the company lie demanded for the Vesuvius seventy-five thousand dollars, which sum he did not consider to exceed her value, and judging from his own experience of what had been done, he believed that Me Natchez company would only be obliged to advance the first payment, and that the profits of the boat’s employment would meet the other payments. In answer to this' proposition, the company offered sixty-five thousand dollars, which the plaintiff, refused torecei ve-ilpon further reflection, he consented to accept this sum; but it was,not until a fortnight after it had beets,¡proposed, and when the, company were at fall liberty to recede. Does this look ]¡]ie ^he coa(juct of a man who was selling an article, which be knew, or believed, to be worth touch less than the sum offered ? If he considered the bargain an advantageous one at the time, would he have risked such a delay? No. The advantage Was believed at the time to be on the hide of the company, though subsequent events have given a different aspect to this contract. In etoisequence of the river ffeing unusually low, and continuing so’for an unusual length of time, the return of the boat was retarded until February. To' the mean t^e the value of steam boats had depreciated. Instead of full freights and constant employment, the harbour was filled With boats unemployed. A reduction of the ratos of freights Was the consequence — and a greater reduction in the value ^f steam boats. It was then that the Natchez company found bargain not to b;e an advantageous one, and it was then that they determined if possible to free themselves from it. It was then, that fhe idea suggested itself to them of ripping up ⅛⅜ sheathing, and⅜ examining the timbers of this bokt. I say,,it was not until then, because if shell a proceeding had been originally con-té ipiaied it wbuid have been provided for ⅛ the contract. The Natchez company being Well. acquainted with the history and age of the Ye-suvius, knowing that she was built at Pittsburgh in 1813 and that some part: of her original frame remained, knew that in the ordinary coui*se of things she must have defective timbers. This knowledge had no effect to prevent them from concluding the contract ; because they also had sufficient information, that if the course of trade remained as it had been and then was, they could clear the price of the boat with interest, before she would require repairs. These gentlemen are sufficiently well informed to know, that a boat may be a safe cargo boat, seaworthy and fit for her customary imployment, and at the same time have many defective timbers. Having*-then made the examination, and having found the defects which they expected to find they refuse to receive the boat, and compel the plaintiff to resort to a court of justice for the recovery of his just debt. And in what manner does the defendant meet the merits of our cause? By an attempt to embarrass it ith innumerable formal objections, having no substance either in law or in equity, and being many of them inapplicable and inconsistent with the facts. By loading the record with bills of exceptions upon points unimportant, and upon which the decision would not have been otherwise than it is. For what purpose all this, un-1 1 *ess °^scure the merits of the case ? I shall conclude with one remark; that the defendant, or either of the directors of the X ate hez company, could hardly have reconciled it to themselves to violate such a contract, or to make such a defence in their private capacities, which, as the agents and directors of a company, they have considered themselves justified in doing.
    HawTcins, for the defendant.
    Two questions present themselves for consideration, before the case be examined on its merits.
    1. Are the laws of the State of Mississippi, or of Louisiana, to govern this contract, it being made at Natchez, but to be executed at New-Orleans ,* or, are the laws of both countries to be resorted to, to regulate the rights and duties of the parties ?
    
    The authorities quoted from the common law books on this subject are, 3 Dallas, 37Í), i id. 327, 2 Johns. 235, 1 Gallison, 374, 5 Johns. 239. In neither of the cases referred to, does the question appear to be fully settled. On this subject the common law reporters seem to have borrowed their light from commentators on the civil law.
    In the note fouud in 3 Dallas translated from Huberus, after propounding a number of cases, this author furnishes the principle; u That the place, however, where the contract is entered into is not to be exclusively considered.” If the parties had in contemplation another place at the time of making the contract, the laws of the latter will be preferred in the construction of the contract. Every one is considered as having contracted in that place in whi h he bound himself to pay or perform any thing. And the notes to the case in 1 Gallison sanction this doctrine, by giving as exceptions to the principles there laid down cases growing out of contracts made in one place, to be executed in another.
    The most clear and satisfactory view of this subject is to be found in the decisions of the present supreme court of our own state. Le Breton vs .Mouchet, 3 Martin, 111, 5(). Ha nip.’ ton vs. Brig Thaddeus, 4. id. 585.
    
    In these cases the court have relieved the question from the doubts and difficulties found in the common law authorities ; and in the latter case, 585, the principle is recognised; that the law of the place where the thing is stipulated o be done or given is the lex loci of the fact which gives rise to the obligation, and must therefore regulate the rights and duties of , ° the parties.
    It has been strongly relied on by the plaintiff’s counsel, that by the contract sued on, the . rights of the plaintiff vested rights, not to be affected, or controlled, by the laws of Mississippi, as upon a contract fully executed there ; and hence is presented the question
    S. Is the contract sued on by the plaintiff an executed or merely an executory contract ?
    If on this point no authority could be adduced, the plain but sound principles of interpretation, would conclusively establish the contract sued on as merely executory.
    All contracts must be considered as execu-tory which contain subsequent conditions and duties, the performance of which are essential to the rights of the parties.
    In the contract before the court, every act essential to its consummation, every act necessary to the objects of the contract and rights of the parties, was to be done and performed subsequently to making this covenant at Natchez.
    It is not a contract of sale vesting any right or title to the boat, but a mere agreement to sell. The seller imposing on himself various conditions to be performed before the sale was , cqu-summated.
    
      What were the conditions ? {< That on her return voyage the Vesuvius should be delivered, at New-Orleans in good order, to the company or its agent, that at the time of delivery the seller should make, execute and deliver a formal conveyance vesting title in the company, and by said conveyance guaranty and secure the title to be free from all suits, liabilities and incum-brances whatsoever.” Until the boat was so delivered at New-Orleans, in good order, and with the title stipulated to be made and delivered, no right occurred to the plaintiff, to demand of the company any performance on their part; for the company stipulated to pay nothing until each and every of these conditions were previously done and performed by the plaintiff, and until they were so performed, the plaintiff had no one vested right which could be sued for or enforced. Yet, according to the doctrine contended for by the counsel for the plaintiff, all his rights were vested and perfect by merely signing the covenant sued on.
    Had the Vesuvius been lost on her voyage to Louisville, would the loss have fallen on the Natchez Steam Boat Company ? Clearly not. If the company had no vested right to the boat surely the plaintiff could have no vested right to recover the price proposed to be given for her by the contract.
    When the Vesuvius was tendered to the com-pan.y in New-Orleans, had they not a right to require that, she should be in the good order, and accompanied by delivery to the title, stipulated by the contract? Having this right; the right to examine the boat and ascertain her condition cannot be questioned, and having by such examination found the boat not in the good order required, or, contemplated by the contract, the right to refuse the boat followed as matter of course.
    With all these conditions to be performed on the part of the plaintiff, and the performance of which were indispensable before any right accrued to the plaintiff, or responsibility attached to the company, it is difficult to find, even plausible pretexts for giving the instrument sued on, any other than its true executory character.
    The only authority relied on by the plaintiff’s counsel to give to the articles made at Natchez the dignity and effect of an executed contract is found in our statute. Civ. Code, 345, ort. 4. If this article can be construed to be at all applicable to this question, its application is fully ina.de and explained ia the same statute, 3i6. 
      art. 9, which declares that a sale may be made . . parely ami simply, or, under a co idition either suspensive or resolutive.
    
    That there are conditions in this contract, and that they are properly suspensive conditions cannot be doubted. The effect and nature of these conditions, as illustrated by both common and civil law authorities, fully support the principles contended for by defendant’s counsel.
    And the nature of this contract is also strongly exhibited and well settled by the case of Hampton vs. the Brig Thaddeus, where we might with propriety pursue the very language of the court, and say that this contract “ began to be executed at Natchez.” Its covenants enjoining the performance of essential conditions elsewhere, the contract canhot be considered as executed, or consummated until these conditions are performed ; the place of delivery is the place of performance — and the laws of the place of performance govern the rights of the parties. 2 Black. 443. Civ. Code, 272. $74. 1 Pothier obi. 176, 198, SOI, 202, 203, 2Í8. 4 Martin, 582.
    
    Well aw are that this action cannot be maintained against the defendant, if tested alorte by the laws of Louisiana, the counsel for the plain - tiff have found it necessary to resort totheprin-ciples of ¡he common law, on the subject of partnerships, to find ground for recovery.
    The extraordinary nature of this action com-pgjjpj the defendant to file several pleas in order to embrace the whole merits of his defence. The first properly in order, is the plea in abatement, a plea necessary to repel the assumed fight to recover of the defendant individually as a member of a common commercial partnership. Admitting the covenant sued on, established, such partnership which, however, is positively denied, as well by the contract itself as the pleadings, the plea in abatement would be fatal to the plaintiff’s action according to the principles of the common law. And by our own legislative acts, all the parties should be made defendants in the petition. These principles are so well established as to need no comment. 5 Burrows, Mice vs. Shute. Watson on partnership tlQ, 131. 2 Johns, cas. 382. 1 Comyns on contracts 336.
    The only answer given by the plaintiff’s counsel to tiie plea in abatement was, that the co partners of the defendant reside out of the jurisdiction of this state.
    By examining the authorities they relied on to maintain this position, it is believed that they will be found not at all applicable. The cases to which they refer were cases, where the party, plaintiff by bill in equity, sought redress, alledging as ground of relief that some-of the .• ‘ ' ' parties were non-residents.
    And in all cases to avoid the force of the plea in abatement, it is indispensable that the allegations of non-resident parties, or partners should be made and relied on specially in the bill seeking relief. But no case has been quoted at bar. or found by the defendant’s counsel, where the plea in abatement has not been deemed good, when offered at a proper time and furnishing all the partners who should have been united in the action.
    If the plaintiff be permitted to go to the rules of the common law to find our liability as a common commercial partner, he must submit to the rules of the common law in-repelling the liability he thus seeks. The more especially as he has to go beyond the stipulations of the Writing sued on, to find any cause of action at common law.
    We will now consider the grounds of defence found in the special plea in bar to the plaintiff’s action, in which the defendant relies, that the contract was executed by him as chairman of the company, purely in the character of agent,
    
      That the company was not formed for general commercial purposes, but special and limited objects, with a view to incorporation, and now is actually incorporated.
    That the whole character, objects, names, amount of stock, and special liabilities of the company were made known to the plaintiff, and that the contract, was entered into, not with the defendant individually, but, with the company, with the view only to such special purposes and liabilities.
    Under this plea, two questions are presented.
    1. Could the company at Natchez appoint an agent designated as chairman, who could by contract bind the company for the objects of association: and could the acts of the agent (for and on account of the company and within the pale of his authority) he so construed as to produce individual liability on the agent ?
    That the company could lawfully appoint their agent, giving him the description of chairman, or any other, and vest such agent with power to bind the company, cannot be questioned. By the counsel for the plaintiff it has not been denied. Have the Natchez Steam Boat - Company appointed such agent, vested him with such power, and has the defendant, as such agent, so transcended the pale of his power as to become individually bound in this action ? to the plaintiff
    In the plaintiff’s bill of exceptions to evidence he objects to the evidence offered by the defendant, except such parts thereof as tend to prove the u minutes, rules, regulations and subscription paper of the Natchez Steam Boat Company, and that the same were read by the plaintiff' before the execution of said agreement of the 5th \ ovember, 1818.” These papers and facts, therefore, are considered as duly proved and properly before the court, and clearly establish all that is necessary to maintain the defence relied on in the special plea of the defendant. The documents prove that, in the organization of the company, and, conformably to its rules and regulations, the defendant, Pos-tlethwaite, was duly appointed chairman.
    The company resolve conformably to the objects of association to purchace one or more steam boats: OntheSSd of October 1818, the company pass a resolution authorising the defendant and two others to submit propositions, or respond to propositions submitted by the plaintiff, conforma-bly to this resolution, said three persons informed the plaintiff that his proposition had been considered, and the writers were authorized to offer those of thp company.
    
      These were the propositions which the plaintiff finally acceded to, and on which the contract was based.
    Thus, then, we have the appointment of the defendant as chairman, tlve resolution of the company authorising him to make the purchase and the propositions made conformably to this resolution giving the terms anil conditions and going to the extent of the authority conferred by the company. And conformably to these terms and conditions (substantially) was the contract finally made, signed by the defendant in his character of agent or chairman.
    Are there any covenants in this contract personal to the plaintiff? None.
    Are there any which go beyond the authority given by the company to contract for and bind them ? None.
    In fact, throughout the whole negotiation, in all the letters and communications from the defendant to the plaintiff, he uniformly speaks of himself as the agent, acting for and on behalf of the company.
    This is a candid and correct view of the relative situation of the parties, as to the agency of the defendant and his having acted and covenanted alone in the character of agent.
    To convert the limited and acknowledged responsibility of an agent, (acting with good faith as such, within the authority conferred, and for the benefit of those conferring it) into the enlarged and ruinous responsibility, contended for by the plaintiff’s counsel, would be breaking down long and well established principles of law, priucioles which have found encreased sanction from encreased scrutiny.
    It would be a mere parade of books to present a long list of authorities for principles which have received the repeated and solemn sanction of our own supreme court. The following authorities have met with no satisfactory answer from the plaintiff’s counsel.
    A contract has no effect, except with regard to the things which are the objects of the agreement and to the contracting parties.”
    “ The agreement being formed by the intention of the contracting parties, can have no effect except with regard to what these parties intended and had in view.”
    “If the agreement be made in the name of another, and as having been entered into by a commission from him, the agreement would be made with him by my agency and not with me.”
    “ A person acting avowedly as agent, is not liable personally.” I Pothier, obi. n, 55, 85, 86. 3 Martin, 641. Civ. Code accordant.
    
    
      2. Were the company at Natchez competent to associate themselves in special and limited partnership; and, by contract, bind themselves alone in the limited and special character contemplated by the association ?
    Instead of such associations being prohibited in our country, it would be difficult to suppose a case, which could exclude their formation: and when so formed, it would be equally difficult to find any sound principle of law or morality, which should make the members thereof liable, beyond the express responsibility held out and guaranteed to those with whom they should contract.
    • The counsel for the plaintiff have presented no such case; nor have they furnished any answer to the grounds relied on and authorities quoted by defendant, to shew, that the partnership at Natchez, if any, ivas a limited and special one, sanctioned by law : that the plaintiff contracted with them as such ; and that the company alone, and not the defendant is bound by this contract. The right to form such special partnershios is found in our own code, as well as the common law hooks; and when so formed the members are alone responsible according to the special terms of association, and responsibility held out to the contracting party. Civ. 
      
      Watson on part Code 391, art. 1¾, 13, 1« 3 4. Johns, cas. 171.
    Being unable satisfactorily to repel this ground of defence, the plaintiff’s counsel found it necessary to evade it by calling on the court, to seek the responsibility of the defendant as member of a general, or commercial partnership.
    The doctrine in relation to such partnerships is well settled — and has not been controverted by the defendant’s counsel. That in this description of partnerships, qach and every member should be resnonsible for the whole debts of the company, is founded in reason and policy : and, required by the nature of trade, and the good faith necessary in commercial operations.
    íhe same principle is recognized in our own code, but the very mariner in which it is done, shews clearly that the principle is alone applicable to common commercial partnerships. Alter treating of the character and nature of special partnerships, the code proceeds to establish th e rules applicable to ordinary commercial partnerships; and their special enumeration and application to this description of association, forbid the extension to any other. Civ. Code, 391, art. 41.
    If, in the cause before the criurt, such ordinary commercial concerns between the defendant end the Natchez Steam Boat Company had been established, (which, however, having nonexistence, has not been proved) then it has been already shewn, that the plea in abatement would be fatal to the plaintiff’s action.
    But let us examine the ground on which the plaintiff’s counsel relies to maintain this action against the defendant as a member of an ordinary commercial partnership.
    There is nothing in the covenant sued on, in the pleadings, or the evidence adduced, which goes to shew the existence of any such partnership, nor is there any thing in writing relied on to support the position, that the defendant was even a member of ¡he company.
    To the articles of covenant, the company is described as the Natchez Steam Boat Company, the defendant signs as chairman thereof; the character of the company, and the authority, by which the contract relied on was signed by the defendant as chairman, is alone to be found in the articles of association, the rules And regulations ado.pted for the government of the company, and the recorded resolves vesting the authority in the defendant to make the present contract.
    Is there any thing to be found in these documents and proceedings, which shews that the company at Natchez were a common commercial partnership ?. The idea of such association is wholly excluded from the very objects of the company, as well as the regulations defining these objects. The objects were the purchase of one or more steam boats, with a view to their navigation, relying upon the freight derivable from the transportation of merchandize of others, as indemnity for the funds thus invested.
    And, in one case only, could even a purchase be made of any article, other than the boats, and, this case is expressly declared to be when scarcity of goods to be freighted for others rendered it necessary, heavy articles of goods in bulk were to be purchased, upon which, fair freight might be realised.
    The members of the company were to be*come contributors, not of community of monies, effects or labour (as is essential to all commercial partnerships) but by subscribing for stock, and each member bound only for the amount of stock so subscribed in shares.
    The company was associated in the mode by which all such companies ar« formed, previous to incorporad* n. In their formation and whole proceedings, they had a corporation in vie v. One of their first resolves was to petition their legislature for Incorporation, and this was accordingly conferred.
    
      The appointment of a chairman, previous to incorporation, and, this was accordingly conferred.
    The appointment of a chairman, previous to incorporation, to act as the agent of the company, was mere matter of form : they might just as well have called him president, or given him any other description as that of chairman.
    ⅛ Can any thing be more extravagant than the idea, that by virtue of his office of chairman, the defendant was to become liable for the whole debts which the company would create by their contracts; was such a liability contemplated by any one? Was such liability ever for a single moment held out to the plaintiff?
    The company, too numerous to act toge'her, created an agent, whom, they call chairman, not that he was to be ruined by the payment of the company’s debts; but that he might, for them and on their account, contract and covenant to buy boats for them and for which they would pay-
    It was contended, by the counsel for the defendant in argument, that the only case where one shall be deemed bound for the debt of another, without having expressly so bound himself, is to be found in the known and estab-blished relations of husband and wife, guardian ami ward, father and child, master and servant; , . , • and where the law itself points out the duties and prescribes the limits of the responsibilities, which attach to these various relations. This position is deemed undeniable ; notwithstanding the depth of research displayed by the counsel for the plaintiff, no satisfactory answer was made to it. And in this case, unless it is shewn that the defendant comes within the principle, and by virtue of his office as chairman stands in that relation which the law has pointed out and made him expressly responsible, this aciion cannot be maintained against the defendant for a debt of the company, unless he has expressly so bound himself for their debt by the writing sued on, and in this case we shall search in vain for any covenant by which lie is so bound.
    And vet with these strong aid admitted facts, these plain and uncontroverted principles of law before us, The counsel for the plaintiff, to maintain this action, require of the court, first; by inference and implication to establish (what never existed) a common commercial partnership in the Natchez Steam Boat Company ; and, by the same equitable and just course of inference, secondly, to presume the defendant not only a member and partner, but, liable for the whole debt thus contracted by the company; and, this too, in violation of the covenant sned 1¾ . . on, as well as the avowed intention and declar* ation.s of the contracting party.
    In the argu .tent of the cause, the counsel for ^jie see .te i to differ, as to the character of the partnership formed by the Natchez Steam Boat Company.
    It was contended by the counsel for the defendant, that, formed as the association was with the express view to incorporation, it should properly be considered, what is called in the commercial code, an anonymous partnership. In regard to which it is alledged that the anonymous partnership does not exist under a social name or firm, but is distinguished by the object of association. It is managed by agents or directors who are either stockholders, or not; that the directors are only responsible for the execution of the trust committed to them, nor do they contract in virtue of their administration any personal obligations, nor become jointly and severally responsible for the engagements of of the association. The association are liable only to the extent of the interest, that is, to the amount of their shares in the association, and they cannot exist without the authoriz.-ition of government. Commercial code, l. 1, t. 5, art. S9 — 37-
    
      It is relied on by the counsel for the plaintiff, that according to the commercial code of ⅜ ranee, art. 31, referred to, this anonymous association can have no existence without the authorization of government. This cannot avail the plaintiff, and the more especially in the case before the court.
    That the company at Natchez have a right to limit their association, and that they could lawfully appoint an agent with authority to make special contracts obligatory on the company :
    And that the contracts so made with the full knowledge of the character of the associaiion, furnished the contracting party, could only be enforced according to such limited liability, has been abundantly shewn.
    Aware, however, of the inconvenience of making these special contracts, and of the benefits derivable from receiving the sanction of government, this company was formed with the declared view to such sanction, and at the earliest moment practicable, this sanction was obtained.
    The only reason why the commercial code requires the sanction of government is, that the nature of the association should be made public, that there should not exist associations with special limited responsibilities hidden from society,. and whereby impositions might be practised tip- . . , on private individuals.
    The principle found in the 37th article of the code, would not affect a contract made under # # the circumstances presented to the court in this ease. Such a contract made wiih a company so associated, with the view to the sanction of government, and which sanction was actually conferred as contemplated, would be enforced in good faith according to the real intention of the contracting parties.
    Can the plaintifF in this cause complain that he has been deceived by a secret association at Natchez, holding out false inducements, or, feigned responsibilities :
    That the defendant assumed the charactér of chairman and made himself individually liable by exceeding the bounds of his authority :
    That the company, lv contracted with, is not the solvent, good company represented to him?
    On the contrary, the plaintiff acknowledges, that all the papers necessary to apprise him fully of the objects and character of the association, as well as their views to incorporation, were submitted to him previous to making the contract.
    He had before him, in writing, the agency of the defendant, and his authority to purchase the boats, as well as the price and terms the com pa-fty had agreed to give. He had, furthermore, the names of the subscribers, with the amount of stock respectively subscribed by each, and the knowledge that no subscriber was bound to contribute more than the amount of stock so sab-séribed.
    The statement of facts, made in the affidavit of Fisk is admitted, as having been duly proven, and therefore to be viewed as good testimony, subject to the legal exceptions taken by the plaintiff as to its admissibility; aud, these facts, so far .from being at all controverted, arfe admitted by the plaintiff to be true. What aré these facts ? « That the defendant, as chairman of the said company, proposed that the notes should to executed in the same mauner, in which it was subsequently agreed they should be made, and as they were, thereafter, made in the case of the Orleans. That to this the plaintiff objected, and stated that he did not wish to look to the company for his money, and proposed to the defendant that* he,-together with two ether members of the said company (^ntherforff aid €¡riswold) should sign the notes without any allusion, or reference to the company, as in this mode, he, the plaintiff woul& not be under the necessity of resorting to the company for pay-men^ ag jie wou](j }jave tj,e personal security of the persons so executing the notes for the whole apount.
    The defendant positively refused to do this, saying that he was not and would not become responsible in the concerns of the said company, beyond the amount of shares by him actually subscribed in the stock of said company ; and that if the plaintiff was not satisfied with the security wich the subscription list of said company presented, and the recourse which he would have against the company, as then constituted, or against the several members composing it, all further negociation must cease.
    We will here only premise that this testimony cannot be refused by the court as inadmissable, because, it neither inlarges, varies, contradicts or filters the contract sued on. It only goes to prove, that, according to the face of the contract, the defendant was contracting with the plaintiff in the character of chairman, as agent for the company;,the contract to be made for their benefit and on their liability. And that the plaintiff net wishing to look to the company for his money, proposed to the defendant to in-large his contract, to abandon his character as agent, and execute the notes with two others in their individual characters, and thereby become personally bound, which the defendant positively refused. That the plaintiff ultimately accepted the contract, and agreed to accept the notes signed by the defendant in his character of chairman, as agent for the company, and as had been originally proposed and understood by the parties.
    Why did the plaintiff state that he did not wish to look to the company for his money, and propose to the defendant to become individually bound, if he did not know, and it was not distinctly understood, that the contract, as proposed; was to be made purely as agent, and with the view solely to the liability of the company and not the defendant?
    • Thus we have the plaintiff ⅛ own positive declarations that he was treating with the defendant purely in the character oí agent; that he was seliing his boat to the company, and was to look alone to the company for payment, and that he proposed to make the contract individually binding, but which the defendant positively refused.
    With these admissions of the plaintiff himself, can this court enforce this contract against the defendant, without violating as well the sound rules of interpretation as theevident and d^dared objects and meaning of the contracting . parties,
    If under circumstances like these, a decree cap be had against the defendant in his indi-v¡¿uaj chai'acter, it miist be founded on principles of morality and law, totally different from those, which heretofore have received the sanction of this and other enlightened tribunals of justice.
    In the case of ICrumbhaer vs, Ludeling, after settling the principle that “ a person acting avowedly as agent, is not liable personally for any act, legally done in his capacity as such,” this court, after stating as a general rule, that no parol evidence can be admitted to prove any contract different, from that made by the bill itself,” say ‘- but this rule does not preclude inquiring into the consideration, as in that case between the drawer and payee of a bill of exchange,” *
    , That was a case on a bill of exchange, signed by the drawer in bis individual character, and to prove that the bill was drawn as an agent, and with the knowledge of the payee.
    This parol testimony went to establish an agency, when the writing was signed as principal-
    The papal testimony he»© offered to the court only goes to shew that thefldfefendant was» ed lo by the plaintiff, .to go beyond his ageifey; to make a contract different from 'that which Was made, and become individually bound, Which the defendant refused.
    In the case of Krnmbhwr *⅛. Litdeling, the court say further, that the defendant is at liberty to shew a want of consideration, and ány circumstances of fraud, or violation of good faith on the part of the plaintiff, which may be sufficient to exonerate him from his apparent liabi-li y; the suit against him being brought byj a person « with whom he was immediately concerned in the negociation of the instrument.”
    The court then proceed. If, then, Ludeiing shews that he was a mere agent throughout the whole of this transaction, and that within the know ledge of the plaintiff^ the bill is nót binding on him because he is not a party to the contract, and as it relates to him, it is without consideration ; and the attempt on the part of the appel-I lee to enforce it is a violation of that evident justice and good faith, which ought to direct and ’govern in all contracts.
    The principles here settled by this court have not beeareomplained of) nor* will they be disturbed, until we are incapable of appreciating the anil good faith which ought to direct and govern all contracts.
    We only ask of the court to test the rights of the parties now before them by these principles, and the grounds for recovery by the plaintiff must .be found elsewhere thau in the good faith which marks his attempt in this action to seek individual liability in the defendant. 3 Mavtik,
    
    Thirdly. We will now consider the defence., presented by the defendant’s plea in bar to the plaintiff’s action.
    Under this plea, the ground relied on is, that the defendant executed no such covenant as is produced to support this action.
    We have sought in vain for the defendant’s liability as agent, or as member of a partnership'either general or special. Let us see how far he has incurred individual liability, by ány of the covenants contained in the writing sued on.
    The plaintiff covenants to sell and convey to the Natchez Steam Boat Company, not to the defendant, that he will deliver the said boat to the Natchez Steam Boat Company, or its agent, not to the defendant; that at the time of the delivery to the said company, he will make a conveyance vesting title in the said company.
    The chairman, board of directors and compa-ay covenant to pay therefor 65,000 dollars in the manner following, viz. 15,000 dollars in cash &c. ’
    The company, not the defendant, covenant that at the time of payment of the 15,000 dollars they will execute their promissory notes to the plaintiff for the residue 50,000, and that they (the company) will execute to the plaintiiff a deed of trust; and that the notes and deed of trust shall be executed and delivered by the chairman of the board of directors, in the name, and for, and on the behalf of said directors and company.
    Not one single expression, in this whole writing can, by just rules of interpretation, be tortured into individual covenants on the part of the defendant. If any individual responsibility attached to the defendant, by signing this writing as chairman, it was not in the power ot the company to discharge him therefrom. The same power which created the office of chairman, and conferred it on the defendant, could unquestionably have conferred it on another. Suppose, after signing this Writing, the defendant had resigned as chairman, or been removed, and any Other elected, would not the defendant have been forthwith discharged even from the* duties imposed on him as chairman ? Clearly. After this instrument of writing had been prepared with ⅞ the covenaiits therein as they «oír stand, could not any other chairman of the company .have signed them with equal propriety as well ás the defendant? Most unquestionably.
    ' This at once settles the question that there are no individual covenants of the defendant in the body of the writing, and that its execution as chairman, no matter by whom, was merely complying with the forms the company had adopted, by which they should become bound through their agent.
    But, again, suppose Postlethwaite bad brought an action, in his individual name, for this steam boat under this contract; could he have recovered her ? Such an idea would be preposterous. If he could not recover the boat, shall lie be made' liable to pay for her, with no covenant on • bis part to do so, and in direct violation of the character in which he contracted — as well as the clear meaning and intent of the contracting parties.
    The subtleties of learning nevyr tire, when pressed to point out in this contract afty one Covenant, by which this action could be maintained against the defendant : the counsel for the plaintiff* tell us, there is the defendant’aptb vate seal at the end of chairman. This magie, of a scrawl with a pen, has been on the wane fOFsome years ; a riUmber of the sister states, our own with others, have ventured to believe that á £óutraei could-be ás well understpod, and the objects and rights of the parties; enforced with as inucli justice, in the abseriee, as in the presépce of this mysteripús, wax, or scrawl.
    * The authority'(if any was Wanting) quoted by ihe^defeudarit, is on this point conclusive. This case is frirind in Johnsori’s Reports, where on au instrument for payment' of money executed iu Virginia with an L.S. which ih Virginia is held a sealed itistrumentbut miidfepayabre in New-York Was held to: be governed By rthé laws of New-Yor&y arid to be a simple contract. Warren vs. Jjflieh, 5 Johns. ¾§9. Lest; however, this ground Should be untenable; the plaintiff’s counsel sáy, the defendant is liable, because in actions iii'sotido, the creditor may apply to any one of the debitors he pleaSes, arid referus to the Gw. Céle, S^8,, art. 10% ⅜* 1 Toth. Obi. ». ⅞70.
    This is admitted as very sound law by the defendant; but in the saiitte books it is also declared! that a'n obligation .in solido, is not presumed,, it must be expressly stipulated. There is no obligation in solido expressed in the writing su-dd onr — iaor is there eren ground to presume it, if presumptions coaldftéifiííulgfed. tPothmr ⅛bl, n. 2&5, 2$7~, JM&⅞*3, CrtzPode, '$&’ art. «I..
    .;Tb¡etf¿-'feKÍnginothing ⅛‘thisiconirabt# ⅜⅛⅛. could bind the defendant; in salid® ⅛ then, say. ^ coráseí fof tlife plaintiff,* 1⅛ i| bound by having sighed it merely in Ids iélmíacterof agent. And to support this novel!jybsitióñ we are" referred to 4 Musa. , Rep. 148, 5 ⅛⅛⅝⅜, M8^ 8 Mass, 596. 1 ,ti)hn.,.Oas. 319j it'John: 334. .*♦
    examining these cases they will be found inapplicable^ and to fali far short of establishr ing the defendant’s liability in the adtibtt:
    Parsons says, the decision of this cause must depend ón the construction of the' deed, If the defendants have by their deed, personally undertaken to pay, they must be htdden.” Mass. JB.-597.
    In that case too* the contract was made by agents, appointed' by the directors Who- were agents/and it did not’appear that the company, had given the directors, its immediate agents, power to substitute other agents, by whose bon- - tracts the company should, be bound ;* and, the judge said, that not appearing, he wtiuld not presume it, Without some evidence.
    Tbecase from 5 East, 145, is of the same character, and was a case, where one bound himself; his heirs, &c. not as agent but for the performance '• irtf frgoihefc'- And 'thefrtbee cases frénr tiré same aspect# .and will be found tí» have covenants ⅛- .theh nature individñál, or eases failing to shew the ré^l character of the; ageucy, joi those who^ |i»iglifc have been súéd as principals^; ■;; '; -1 •-
    It- would require a very diffejpeai class of cases froaf these- to induce this court tp unsettle all ⅛⅛ principies they have so often and so ipng sauctioñéd as to tire liability Of an agent as weli as disregard the- pro visions of our own. Code which declare that the covenants by which the defendant is to, buqoine bound id Ibis ease iattst be expressly stipulated, npt inferred.
    ¡In no view, which we-can take of .this cou-1⅜⅛ does 4here appeal ■■sufficient legal ground to enforce it against'the defendant. Should^ however the court differ frqto us, and'-".be disposed to attach any legal responsibility to th® defendant, then |s ¡properly presented for can*, sideration N :
    . The fourth ground, of defence# to wit ; That by false and fraudulent fftiflces and lttisrepre-sentadojns, the plaintiff induced the company to purchase the boat, ib» a full and fair pricé, under assurances that she was m all respects, a sound substantial, fine boat ; when,in feet, the said ⅜⅜ Waá rottem aud defective, and that the plaintiff had-wholly failed t® deliver said:boat^ ^ Ne^-jBbieaa^' •fa -good i order,. according :tw the tenour a%d true spirit of «.aid contract." < t
    The counsel for the defendant offered parol evidence, to prove) the impositions practised ,by„ the plaintiff as to his repTesetrtatious, &q. concerning the boat, but which was objected to by the plaintiff’s counsel 1 upon several ^grounds, and amongst others, that there was ho allegation of fraud in the pleadings.
    This is rather a singular ground to take in this court, open as aré all itS ayénUes to justice, unshackled by the subtleties of special pieadingy
    We ' had , 'supposed*. that óur allegation, ’ of fraud, in the case, would hare satisfied a court, influenced alone by the rules of common, law pleading. : :⅛ ■. • »
    After* gfting ón ap d reciting in our plea tlie various representa lions, ánd inducements béld out to the company tq purchase,; and aíledgingl the readiness of the company to receive, i# -the plaintiff was'ready to deliver, a soupd substantial boat, such ás he fepreseh4ed,the Vesuvihs* to be, but, that* the said ⅜⅛⅛ Lynch, pdt- leí-garding his obligaítions todeilvé't the said steanr boat Vesuvius to the ‘said company, refused sd to do; he, said plaintiff, falsely and untruly al-ledging that the said company were botind ⅛ Receive said bo|t, whether « in good sound or substantial, %r not. Order and
    If to allcdge the plaintiff made oertain cove-Hants and representations which he wholly disregarded, falsely and ujitmlv alledging pretests therefor, »is not an allegation of fraud suited to the views of the pl¿intíff?s counsel, it. is sufficiently so' tp reach; ^lie ijiiud of this enlightened tribunal seeking the . purposes of justice rather than the restrictions which! deny it.1
    This'allegation would permit parol proof.to support it^by the strictest rules of pleading foutnd in common law courts. Here no allegation would he necessary, but the court would receive the proof under the general issue.
    A great variety of cases have been quoted from common law books to shew under what cir-cumstahees^párpl evidence can be,properly admitted to vary, or explain a written instrdmedt. It will bp received in, all cases to prove circumstances tending to shew fraud or imposition* in all cases where, words are used ambiguous in their import, arid the explanation of whiqh is necessary to the just exposition of the pda-, tract; in all cases where the parol evidence will not vary, enlarge, alter or contradict 4lie writing ; but where, it goes to explain driubts whiqh arise^a’s to ⅛⅞ »⅝1 Object apd intention of the contracting parties.
    
      counsel, must he received under either or all the rules laid down., Tn regard ⅜0 We vea to, the rules of evidence* in them.se,1'yes entirely arhitrai*y; -growing out of ho fixed phMcipí % but fipuirig. their origin in a great variety of eases in the books as each respective case presented sjStee, new, feature. And Fonbianque ⅛ Well justified in the idea, that there* is. pei'haps ho rule of evidence, except that.jthe best testimony in the power of the party shall be admitted. : \ ■ - , ⅜ a cá a 'a J£ c ⅛ '83' B ■e C' X P ' ⅛ ⅞ . ⅞ w ° - jd" ⅛- as ° s ,¾- S ¾⅛-. ⅛) Ms ”⅛ C0 <⅛-’ P 45. rt b* p°' cc J "i .⅛ ⅜ W-- ⅜ s *= ⅛ ,¾ ’"S ‘ O ⅛-¾-WÍ. ⅜! ⅛ • ' Tc g - « “ - & ® -¾. as B , 5" c CK *,S3 -S3 ’-⅜ ~T-'“ ' & •⅞6> ,C
    The case before the court, may be most pros perjy viewed as a bill in equity, sfeeking specific performance ; and the coupsel for the plaintiff found themselves wholly at a loss to avoid the conclusive authority from Phillips? in page 4⅜9, Wlíete the author after taking a clear and com* prehensive view of the subject* .lays it down as. settled ⅜ when a Court of equity is called on tp decree specific performance, there thgpayty to be charged is admitted, to shew that under the dr* cumstances the plaintiff is not entitled to ⅜⅝⅜» the agreement specifically performed. ¿Fhefatí-mission of suclr evidence as matter of defence is very frequent ; it⅛used to rehut an equity. The agreement you seék,-says the defendant, ⅜ irat the agreement Tineant to perform ; a,nd then he is admitted to ptóve fraud or ihistake, The same author, pagé¾⅝0 say s; .the general principle appears to be, that in answer to A bill .for specific performance, the defendant may suggest and give pardl evidence upon the grouud of, fráud, surprise or mistake.
    The counsel for ⅛⅞ defendant might, however, with tbTe móst perfect-confidence yield ⅜11 the hetfeftts derivable from*’ the; common*’law authorities, and safely rely on having the admission of the parol testimony Offered by them tfsted by the rules laid doty»' in. where after recognizing the general principle^ that parol evidence*'caftt»ot be admitted to proye Any cdntraet different from that made by the bill ;; the codi’t further say, that this rule, does trot prevent inquiring into the Consideration, and the party is at liberty to shew a want orconiid-¿ration, or any circumstances of fraud qr violas tion of good faith oh the part of the plaintiff; "
    The parol testimony offered by the defendant is not to prove a Contract different from the one íelied on, but to prove a want or failure of consideration;; to prove that the boat, which was the only consideration with the company, was represented and purchased as a sound good boat; when in fadt she wa£ décayéd andfbtten, so as greatly to reduce her value. To prove her "defects aré só great, that had they been known t© the company, so fah from giving the full and fair price of -65,@00 dollars they woilld hot have purchased thé boat at all.
    T© reject .'thfe. testimony is to unsettle the principles sanctioned by Our own, as well as the common-law, authorities, and close the door on facts essential to a just and equitable interpretation of the contract, really intended by the Contracting parties. Pincel on cent. 426, 484, 3 Té¥m: 'Rep. 474, Call.Rep. 5, 1 Ball. 193, 486, 8 Ball. 506, 1. Bixiney' 58¾'''«¾^ York T.' R. 232, 9 Crunch 36, 37, Peake’s evid. 97, IS Past. 399, 5 John. 234, 9 Johnsons Rep. 885. Phill. Ev. 416, 443, 448, 455, 3 Martin, 640. • - , ■
    If we are asked for the evidences of fraud, or want of good faith in this transaction on the’ part of the plaintiff, we need only call the attention of the court to! various inducements held Out,in his letters, as to priviledges and benefits the company would secure .by purchasing from him, priviledges and benefits, which-he had not and could not guarrantee. In Ms letter íes not of these very privi- * -P ‘ . ledger, but gives the coppany a solemn warning by which to? deter them from purchasing other boats. In the same-, totter, the plaintiff also speaks of his; desire to “ evince a spirit of can-dour, and openness of dealing with the company.” In other parts of the record, the plaintiff is found urging the defendant to become indi, vidually bound for the debt of the company, which he positively refused $ and the plaintiff ultiHiateLy with concealed and feigned views, as he hipself. ⅝0⅜powledges, recei ved the contract to? and nn a*csount of the company, in the man-' ner proposed by the defendant. The plaintiff attempts to justify this conduct by the facts, stated in his affidavit and found in several parts of Up record»
    'i’bft ground* relied on for justification, is that before he received the contract of the defendant as chairman, he consulted counsel and examined authorities, and satisfied himself that the defendant wpaM be individually bound for the debt, notwithstanding he was contracting as agent or chairman for and on account of the company.
    Tb&v plaintiff, however,- took espeektogood |-epp.e fo conceal from fbe; defendant tfadfoeu^yiewa | of individual responsibility, obtaiaed by bis gal researches^, and l&ctually received the copy tract, not only with the full belief of? the defendant that the plaintiff was satisfied to look to the ’company, but with the express declaration by: the defendant that he was not and would not become responsible for the company ; and that before he would incur the obligations, now at-attempted to be enforced against him, all further negociation with the plaintiff must cease.'
    Fraud is defined by the books to be u the artifices by which one man deceives another.” To say the defendant was not deceived by. the plaintiff, in the manner in which this contract Was obtained, would be to contradict the plaintiff’s own affidavit, on which he relies for his justification.
    If fraud be too harsh an appellation for thus deceptiously obtaining from another a contract incurring (ps thé pilaintiff now pretends) not only greater responsibility than the party believed, hut, which he declared he had not and would not incur, and .that he would not even negocíate ‘with the plaintiff with such views, it will answer the purposes of justice to inquire whether this conduct was in the '« spirit of that candour and opennSss *of dealing”: previously professed by the defendant. Was it sanctioned by that good faith which must direct and govern all contracts, and which is essential to give that equitable character to the, plaintiff in wnich he must appear, before he can ask equity of another? Was it good faitli to sell a boat, representing . ’ «. 1*1 her tó be a fine sound substantial boat, by which he obtained a full and fair price, and tender a boat essentially, defective and rotten ? Is this the good faith which is to find favor with a tribunal, whose-peculiar pride is the universal principle of right and justice it enforces ?
    Much of the time of this court has been occupied, not in proving that this is the sound, good boat purchased by the company, hut, in proving ho . much she is rotten and defective. All the witnesses agree in proving her most essentially defective : anti, trace the counsel for the plaintiff to the last alternative of the many, resorted to for pretexts of recovery, and you find them making laborious calculations, not to prove the boat such as was represented, and covenanted, but to prove that she is only rotten to the value of some 10 or 15,000 dollars, when the count below has determined, that the testimony sanctions a mmunition from her price of S5,O0O dollars. •
    When the plaintiff’s counsel respond to the. deceptions ,used, by which this contract waa ohr tained^ we are told that the plaintiff only ovatv reached the' deféridabi? in his lfegál researches; and much learninghbthffrotn the living and dead languages is pressed ©n ns to prove, tbat our ig-noraí ce of law will nót excuse us. We should . ' ■ , be wanting m a proper regard to the understanding of this court, to occtipy thém in shewing the difference between ignorance of law, and the deceptive manner in which the plaintiff induced this contract from the defendant. Without wading through the long list of authorities quoted by the plaintiff’s counsel on this subject, ■we deem it only necessary to call the attention^ of the court to the principles which aré applicable to the cause before them.
    Fonblanque, certainly amongst the best authorities from the common law books, and peculiarly entitled to be relied on for his able equity treatise, declares an impediment to the execution of a contract to he ignorance and error ; either in fact, or in law : and if the mistake be discovered before any step is taken towards performance, it is bbt just he should have the liberty to retract.
    The’ * Same author refers to the ‘ jMles of the civil law “ that there is no consent, where there -is error ;” and says in the application of this tule, it is material to distinguish errer iw circumstances which do hot inttneuce the contract. anil error in circumstances which induce the contract.
    Apply these rules, whether as to ignorance of law, or fact, and they secure the defendant , -against a recovery.
    Even if the defendant became legally bound by signing this contract (which, however, we trust has been clearly shewn lie did not) still his error that he was so binding himself, coupled With the positive declarations, that he Was not and would not become so bound; and the admitted concealed views of the plaintiff, when lie obtained this contract, notv ithstanding-his previous professions of candour and openness Of dealing, would clearly bring the defendant kl the rule as to ignorance of law.
    Is not consent an ingredient indispensable to to all contracts ; did the defendant ever consent to become legally bound ? Can the court for a moment believe that the plaintiff would have obtained this contract from the defendant, if he had entertained the most remote idea that the law would attach, or, the plaintiff would ever have sought to make him individually responsible ?
    Was not the defendant induced ‘ to sign this contract, purely from the belief the plaintiff would* lookinland seek the company and not ' the defendant under the contract ? .
    , If then he has legally erred? and this error would have influenced him not to make the contract, had he been undeceived at the time, aeeppdingTo Fonblauque and the authorities to which he refers, this error of law shall excuse him and the contract be vacated.
    Again, as to error in fact, can any rational mind, for a moment, doubt that the defendant was in an error as , to the real situation of this boat? . . \ v .. .
    It lias been abundantly proved (and the testimony cannot be rejected, by the rules already established, in .3 Martin, for it only goes to the consideration and :nbt to alter the contract) that 65,00Q*dollars was at the time of the purchase a full and fair price for the Vesuvius, even if sbe had been in all respects a perfectly sound and good boat.
    And, yet, the witnesses vary from 815,000 to S5,00S as to the loss wtiich, Ihe company would sustain by. making her, what they believed they Were' purchasings a sound, good boat.
    Even the plaintiff’s own examiners and reporters declare that on the larboard side a majority of her old timbers are detective. ' Other witnesses state that one fourth or one third of all the lower or middle and important timbers are not detective onlv, but rotten.
    What! Give the fullest price for the best boat on the river, and tender a boat thus rotten and defective, 820.000 of less value than you believed her to be at the time of purchase, and yet not be in an error?
    Instead of this being the best boat on the river, an able and experienced builder and master of vessels, and whose character for integrity was proven to be wholly unimpeachable, (A. Seguin) swears that there are five classes of vessels, and that, was he called on to class the Vesuvius, in her present condition for the river trade, he would place her in the last, or fifth class. And, yet in the great variety of expedients which talent and ingenuity bring to the aid of a hopeless cause, we are told that it is no error which would have influenced the parties in making the contract, or, which should' influence the court in enforcing the rights growing out of it.
    Had the defective and rotten condition of this boat been known to the company, can the most incredulous mind believe, that it Would not only have influenced them in the price they gave, but Would have deterred them from purchasing altogether? On this subject Fonblanqne refers to on obligations with this remark, “to ii- i r i , o ., . , wh,cl1 A am happy to reter, it appearing to me to afford the best illustration of the principles* 1 1 and conditions of contracts.”
    Previous to examining the principles to which he refers in Pothier and which are sane* tioned by Domat and other able civilians, we would remark that Fonblanque is supported by authority from American reporters. 1 Fon-blanqm, lid note. 1 Hennen Mumford, 48ft.
    In regard to error and the objects to which it relates, it is wholly unimportant whether it be produced by fraud, or from any other cause. It is sufficient that error exists, and that it is error, whether of law or of fact, which might fairly be considered as influencing, or inducing the parties to contract, or abstain from contracting had they been undeceived in their error, or which would have influenced them in the price they contemplated to give for the subject of purchase.
    As to the case before the court, therefore, it is only necessary to shew that the defendant was in an error as to the extent of the liability he supposed he was giving, (if in fact be gave any) or, that he was in error as regarded ¡he soundness and good condition of the boat. And it is expressly declared by the civil law authorities, that it is immaterial whether the defects in the article sold were known to the seller or not; it is sufficient that they do exist, and that the article sold proves different from what the purchaser believed, and that the difference is such as might have influenced him in the price at the time of purchase.
    Let us now resort to the sources from whence Fonblauque found himself happy in deriving information, and we shall have cause to regret our inability to the just application of the souud principles of justice, if this court cannot find abundant matter to annul and vacate this contract; a contract, to say the least, in bad faith obtained, and attempted to be enforced.
    
      i( Error is the greatest defect that can occur in a contract, for, agreements can only be formed by the consent of the parties, and there- is no consent where the parties are in an error, respecting the object of the agreement.” Po-thier, Obi. n. 17.
    
      “ Error annuls the agreement, not only where it affects the identity of the subject, but also where it affects that quality of it, which the parties have principally in contemplation, and which makes the substance of it.” Id, n. 18.
    
      “A contract has no effect except with regard to things 'which are the object of the agreement, and ag to the contracting parties.” \d. n. 85.
    « The agreement being formed by the intention of the contracting parties, can have no effect except with regard to what those parties intended and had in view.” Id. n. 86.
    « Since people buy things only to employ them to the uses for which they are destined, this is a fourth engagement, which tire seller is Under to the buyer, to take back the thing sold, if it has such faults and defects as render i,t unfit for its use, or too troublesome ; or to diminish the price of the thing, whether the defects were known to the set lor or not, and if he knows them he is obliged to declare them.” Domat. 1, §, s. S, art. 4.
    « Since it is not possible to restrain all the perfidious dealings of sellers, and that the inconveniences would be too great to dissolve or call in question sales for all manner of defects in the thing sold, we consider only, therefore, those defects which render the things altogether unfit for the use for which they are bought and sold, or which diminish that use in such a manner, or render it so inconvenient, that if they had been known to the buyer, he would have given so great a price for them.” either net bought them at all, or at least .not
    
      ft Although the defects of the thing sold were unknown to the seller, yet the buyer may procure a dissolution of the sale, or an abatement of the price, if the defects are such as give occasion for it; for, since people buy a thing only for its use, if it chance to have any defect, which hinders this use or lessens it, the seller ought not to reap the advantage of an apparent value, which the thing sold seemed to have, yet had not.” Id. art. 5.
    
    
      “ In the same case, where the defects of the thing sold were unknown to the seller, he shall be bound not only to take back the thing or abate the price, but likewise to indemnify the buyer, as to the charges, which the sale lias put him to.” Id. art. 6. .
    “ If the seller has declared the thing sold to have some other quality, besides those vyhich he is bound to warrant naturally, and thafquality happens to be wanting, or thal even the thing sold happens to hay e the. coritrary defects, we ought to judge of the effect of this declaration of the seller, by the circumstances of the consequence.of the qualifies which he has.expressed j of the knowledge which he might, or Ought to, have of the truth, coú&árry to what he has saidg the manner in which he engaged the buyer; and above all, to enquire whether these qualities have made a condition, without which the sale would not have been concluded ; and according ^ circumstances, either the sale shall be dissolved or the price diminished.” Id. art. 12.
    
    «the seller is obliged to explain clearly and distinctly, which is the thing that is sold, in what it consists, its qualities, its defects, and every thing that may give occasion to any error, or misunderstanding; and if there is in his words any ambiguity, obscurity or other defect, they are to be interpreted against him.” Id. art. 14. A ,
    Notwithstanding the great efforts made by the plaintiff’s counsel to prevent the defendant deriving any benefit, by resorting to the rules of the common law for the admission of parol evidence, to explain doubts which might arise as to the real objects and intention of the parties ; yet, when called on tó account for tlje rotten condition of the boat; they say the plaintiff has only ¿ovenanted to deliver this bpat in “ g®od order”; and good order being mere tecbhical terms, thejr contended for the right ⅛>. introduce parol .testi- , mouy to prove what good order means ; and% number of their witnesses were examined as to the import of these words.
    
      The counsel for the plaintiff contended, that good order, as to a vessel, means her fitness to perform a voyage ; and relied with great apparent confidence, that if the Vesuvius was in a situation to perform a voyage the plaintiff had "complied with his contract, and the company were bound to receive her.
    This is, perhaps, the first instance in which this court has been seriously called on to confine its views to mere terms of technicality, by which to enforce these broad and universal principles of equity, which heretofore have received their sanction.
    I» thefe any thing in the term good order, which should induce a belief that the company at Natchez intended thereby only to purchase a boat capable of performing merely a voyage, or being only a safe boat for two years ?
    If the words good order bad not been inserted in the writing, according to the rules laid down in 3 Martin, parol testimony would be received to go into the consideration. . . ■ _ '
    The sole consideration With the company was the boat, and any proof to shew that she was rotten or defective, in whole or in part, would therefore be, good. Shall the defendant be placed iiq a worse: situation by the insertion of these words ?
    
      Bat the absurdity of this attempt to shackle us with technicalities is abundantly evinced by the singular character of the testimony relied on to support them. Some of the witnesses depose that a boat may be essentially rotten (one witness goes so far as to say, two thirds of herimpor-** tant timbers) and yet be in good order.
    .Another witness, captain ¿linker, whose experience and character guarrantee the fullest confidence, deposes that a vessel having material timbers defective or rotten, cannot be considered in good order.
    Watson, a merchant of high standing, deposes to the same effect. -
    We have abundantly ’proven’the Vesuvius t& be most essentially rotten and defective, an3,f therefore, accoi*diug to this testimony, not in good order, and, not being in good order, the company was not bound to receive her, nor can they be compelled to do so.
    If this testimoriy as to the force and meaning of these words is to be used by the plaintiff, surely With equal force must it avail the defendant, if the court find any necessity to travel out of -|⅜⅛ writing to get at the real meaning of the parties, for that is, at last, the fend and object of all fepfitracté, and the golden rule by which they are to be interpreted and enforced*
    
      There is a much more solid basis on which to rely, than the various, contradictory opinions of the witnesses as to the meaning of technical WOrdS. •
    We ha^e proven that the defendant represented and covenanted to sell, and the company believed that they were buying, in all respects, a sound, substantial boat, the best on the river, and for which they agreed upon a full and sound, price : and instead of the boat answering the description, she is proven greatly defective and rotten, and far from being the first, A. Seguin. proves her only worthy of being ranked with the last class of vessels.
    When commodore Patterson, a witness on whom the plaintiff’s counsel places great reliance, for the technical meaning of good order, is asked, if he would deem a vessel in good order which he had been promised for convoy and represented as afine substantial vessel, the best from whence she sailed, and the vessel, upon examination, turned out to be essentially defective, having important timbers rotten, and only to be ranked in the fifth or last class of vessels. He answers, that he should consider himself deceived and imposed upon, by those who made-him the representation.
    It does appear to us that this testimony goes rather more to the merits of the cause, than dif- „ ... . ierent opinions of different witnesses as to the-force of technical terms. ,
    That the company have been deceived and imposed upon by the representations as to the real character and condition of this boat (and whether the plaintiff intended to deceive him or not is wholly immaterial) cannot be denied without disregarding entirely the testimony. If to be deceived and imposed on entitle suitors to relief from this court, a decree cannot be had against the defendant in this cause. If the court should find any difficulty in resorting to parol testimony to establish the representations of the plaintiff as to this being a sound boat; the defendant finds himself amply protected in the implied warranty which the law attaches, and that a sound price requires a sound article.
    The plaintiff’s counsel in the course of the argument were pleased to treat this principle of law with great apparent indifference, speaking of it as only to be founded in the extravagant notions of Professor Woodeson and Doctor Cooper. It is not a very difficult task to avoid the force of a principle, not by proving it morally wrong in itself, but by attacking those who maintain it.
    In the ability displayed in the argument of the cause by the counsel for the plaintiff, WC had a right to expect elucidation of principle rather thafi denunciation of authority.
    It was not, at all events, to be expected, that . . . . the books, containing the favorite principles relied on by them to support the action, would have been denounced as containing extravagant notions.
    Justice Blackstone, for whom some veneration is entertained by the devotees for the commercial law, in treating the subject of warranty says, “but the vendor is not bound to answer unless he expressly warrants the effects, sold tú be sound and good, or unless he knew them to be otherwise and hath used any art to disguisé them, or unless they turn out to be different from what lie represents them to the buyer.’’
    It will hardly he contended that the Vesuvius has not turned out differently from what she was represented to the company. So that our case comes within this “ extravagant'notibn” df Justice Blackstone. S Blacle. 450, 451.
    ; Professor Woodeson, if not with the same splendor of reputation which Blackstone enjoys edj followed in his wake,( and might fairly be considered as deriving all the benefits of the light shed upon the course of his predecessor. In treating of warranty he savs, “ in the English , Jr . - - law relating to this subject, a very unconscien-tious maxim seems long to have prevailed, which was expressed or alluded by the words,, * Caveat Empior,’ signifying that it was the business of the buyer to be upon his guard, and that he must abide the loss of any imprudent purchase, unless the goodness and soundness of the things sold are warranted by the seller. However, it is now exploded, and a more reasonable principle has succeeded, that a fair price implies a warranty, and that a man is not supposed in the contract of sale to part with his money, without expecting an adequate compensation.” 2 Woodeson, 415.
    “ But to come nearer home, in South-Carolina it has been determined as a good general rule « that a sound price warrants a sound commodity.” 2 Bay, 3⅛0.
    Some of he writers of common law séem disposed to confine this doctrine to horses. In the name of reason, why should not the maxim be universal? Is there any thing in the character of horses, which consecrates the principle ? If just in regard to them, would it be unjust in regard to the hidden defects of a steam boat ? This position is well examined in Brown’s Civil Law, where he justly observes, that on this subject the civil law demands a manifest preference (over the common law) in obliging the seller not only to warrant the title, but to warrant the goodness of the commodity. 1 Brown’s Civil Law, ⅛68§* note 16.
    In Sugden’s law of vendors is also found the rule, that vendors are bound to warrant both the title and estate against all defects, whether they were or were not cognizant of them.
    Domat and Pothier sanction the same principle. Judge Cooper, alike distinguished for the variety and extent of his scientific and literary acquirements, (but whose “ extravagant notions of equity” do not suit the views of the plaintiff’s counsel in this cause) in his commentaries on the civil law, gives his warm sanction to the principle that “ a sound price warrants a sound commodity.”
    In treating of this subject, the same author brings into view authorities from the common law in opposition to this principle, and then proceeds : <*' this seems to me a most demoralizing principle of deci ion. I know of no argument that can be adduced to prove that if I give 8i00 for a commodity that ought to be Worth Si00, I ám not defrauded if it be worth only ten. You say the seller knows nothing of it. My answer is, that before he took 8100 from me, he ought to have known that the ••. , , , ■ thing lie pretended to sell was reasonably worth that price. Generally the buyer relies on the seller, nor can, the buyer cheat the seller; whereas the seller (under the common law rule) in nine instances of ten, may cheat his buyer with impunity. The rulé of caveat emptor, ought to be changed into caueat venditor. It is a disgrace to the law that such a maxim (as that contended for as the common law rule) should be adopted, and I rejoice to see the good sense of the South-Caro|ina bench has revolted at it.” Judge Cooper proceeds, to say that the chancery cases in support- of this rule (and which contain the doctrine contended for by the plaintiff’s counsel,) ought to be classed as cases of fraud and falsehood. Cooper’s Justinian, 609, 10, 11, and authorities there quoted. 2 Hay, 380. Sugden’s law of vendors, 1 8C 2. It is not to be wondered, at that the * . counsel: for the plaintiff should manifest some aversion to the principles, contended for by Judge Cooper and other civilians, Alpply them to the case before the court, and their only hope of recovery is gone.
    It has been attempted by argument, (for it is not; to lie found in the testimony): to impress the court with the belief, that the doctrine of warranty should not avail the .defendant or the J . company, because they were fully apprised of the defects of the boat at Natchez,
    So far from this being the fact, the boat Was loaded at Natchez arid could not he examined, and the gentlemen, on, board with the defendant, did not pretend, for they could not, to take any other than a mere cursory survey.
    All that passed while they were on board was calculated to make them believe that the boat was sound, substantial, and the best boat on the river. The plaintiff spoke of the great strength of the boat, pointed to the new beams he had put in to strengthen her, that she was the best boat on the river, that she had been rebuilt, (not repaired) under the plaintiff’s immediate direction and superintendance.
    Relying on the representation of the plaintiff as to the soundness and good condition of the boat, one of the gentlemen on board1, in company with the defendant, observed to the plaintiff^ that they supposed the timbers which they could not see, were all as sound as» those they could, but the< witness did not hear the reply from the plaintiff. See the deposition of Griffiths
    Is it upon this testimony, that, the court min «find grounds on which not: only to disregard die siega! principles, which would compel the plain.tiff to give a soupd article for a sound price, but to enforce a contract, clearly not entitled to the peculiar sympathies of the court, by which it is to be taken out of the uniform rules of interpretation and equitable enforcement of rights heretofore secured to the suitors?
    In regard to the actual condition of the boat, the number of witnesses and the delusive nature of the testimony, render a more particular examination necessary than is found iu the proceeding pages.
    The nature of this examination is such as to produce occasional repetition in adverting to particular statements of facts; a necessity which will fipd an ample apology in the importance of the cause under consideration.
    We will consider next the objections to the condition, soundness, and good order of the boat under the three aspects exhibited by the counsel of the plaintiff, viz. 1. As to the head beam of the engine; S. As to the boiler; and 3. As to the hull.
    First, — As to the head beam. With respect to the character and situation of this part of the machinery, there is ne ther doubt nor difficulty: if the head beam be wanting, or if it be unfit for service, the rest of the machinery, is useless. That the beam of the Vesuvius was broken, in * ferior, and comparatively worthless is admitted on all hands; and we have the authority of captain Gale, an experienced and skilful master of steam boats on the Mississippi, that there is great risk in attempting a voyage with a beam so broken, so much so as to risk not only the loss of the voyage, but the loss of the boat and cargo. Yet , we áre told t,haf the steam boat Vesuvius, tendered to the Natchez SUiam Boat Company in this situation, was tendered in good order, and that under the contract we v, ere bound to receive her ! What! The pride of the Mississippi, the neplus ultra of steam boats, not in a condition to make a voyage, without danger of losing herself and her cargo, and yet in a condition to meet those lofty assurances and pretensions, and to answer to a warranty of good order! The force of this objection is perceived by the counsel of the plaintiff, and it is attempted to be combatted oh the grounds — t. that a new beam had been ordered from New-York, and 2. that there w as a formal waiver by the defendant of all objections to the old one.
    To the first apology it is sufficient to answer, that the new beam was not presented to us. We might confide in the declaration of the plaintiff that it had been ordered from New-York. We might believe it was on the ocean, that it on the river, or at the levee i but we knew . i , , . ,, , that its local being, or being at all, was not known. We saw that it did not constitute a part of that machinery, to the suiiciency of which thes plaintiff knew1 and acknow ledged to bfe essential. But the new beam did arrive, and that, says the plaimiff’s counsel, is a conclusive answer to all objections. And when did it arrive ? To this point- we have the testimony of the plaintiff’s witness, Penniston, that the new beam arrived and replaced the old one-in the Vesuvius about the ¾⅜⅛ of March; that is thirty-three-days after the date at which, the. plaintiff declared the Vesuvius ready for delivery under the agreement, and from which time-he claims our obligation, to receive her, and twenty-two days after the institution of this suit enforce that claim. The plaintiff ’s counsel,, with liis usual accuracy, says the beam was on, boards ⅛6 boat u when the trial commenced in. the court below.” This is entirely unwarrant-of the fact. Is it not clear, then, that there i» connexion between our right* to require, on the 19th February, a steam boat with her machine-in good? order,- and* the promised arrival1 from New-Vork of a bead' beam absolutely^ necessary to constitute such order — the arrival which; wms remote and uncertain, and which? did not i fact take place until more than a in >n ii after, and of which we had no notice or information until it appeared in evidence on the m'eár'R" this cause . j^jtis not equally clear that the defendant (on the strength of this objection alone, if no other existed) was justified in saying to the plaintiff, in his letter of the 27th of February, that “ we (himself and colleagues acting for the Natchez Steam Boat Company) do not feel authorized to receive, aud must decline receiving, the said boat under the agreement of the 9th of November, 1818, as we do not find her in the state of soundness, and fitness for service which that agreement requires.” But we are informed by the plaintiff’s counsel, secondly, that we have admitted performance as to the head beam, and cannot now object to its condition. Two cases are referred to of decisions in New-York, where the time of performing a contract was enlarged and proven by par il. Being, as the court says, “asimple contract, 4 John. Ca. 22. it was competent, by parol, to enlarge, &c.” and proof of a positive agreement to enlarge was given. We will not retort upon the counsel of the plairitiff his notions as to specialties, not take shelter behind the crowd of common 1*⅜*. decisions sustaining the principlfiu "that there cannot be a defeasance or waiver of any condition of an instrument under seat other than by an instrument of equal dignity.” We will be satisfied with g to the record for this "admission of performance,” and see how far it goes to support the plnimiff’s pretensions with respect to it. The witness of the plaintiff; Griffith, says, “ that the plaintiff shewed the defendant the head beam, and mentioned that it was the only thing defective about the engine, and that the plaintiff had ordered a new beam from Neve- Fork.” 'The defendant replied, that “he did not know that would make any difference, if the engine was otherwise in good order.”
    Straightened indeed must the counsel have been for ground to stand upon, when he resort» ed to this casual and qualified language to find a formal and operative waiver of an important condition in an agreement ! 2. As to the boiler. Of the very great inleriority of this important pan of the boat, we have he concurring testimony of every witness examined, ii is old, has given way in several piaces, may last for twelve months, but is at presen too weak to su,;piy steam for the engine. In fact, as to this part of the boat, it may be said,without exaggeration, that the Vesuvius is as if she had no boiler. But it is alledged that the defendant was fully informed upon this subject; an allegation . unsupported by any evidence. The testimony of Griffit h, relied on to this point, entirely f&il-s to establish it. But whether or not, the statement of Griffith can be brought home to the defendant, this is certain, that the plaintiff stipulated to deliver a boiler in good order, and if is equally certain that he failed to do so, except in the particulars of oil and lampblack to conceal the defects, and til paint to exhibit an imposing exterior. On these two points, then, we ha' e ihe most conclusive testimony — testimony whtcu no sutuertuge can elude, nor any ingenuity pervert. First. That the machinery of the steam boat Vesuvius, on the 19th of February, 18i9, and thence to the £4th of .Vlarcb, was unfit for the purposes of navigation ; and secondly, that if the machinery had been in order, the boiler was, on the said 19th of February, and ever since has been, incapable of supplying it with steam.
    We are now to proceed to the consideration, thirdly, of the hull of the boat. On this poiut, the plaintiff’s counsel refers to the report, ante, 80. It may be proper to remark that we have excepted to the admissibility of this report as testimony: it is not sworn to, it was not jaade under any judicial direction, and the pas»' ties to it were nearly all present in court. As it is upon the record, however, it may he proper to remark upon it. The signersof the reportare, Allen Gorham, VíTílliam C. Withers, Charles K. Lavvrence5 {J. Harding and Andre Seguin — 'the three first named were selected by the plaintiff, under an agreement between him and the defendant, to select carpenters, and, of course, indifferent persons, to examine and report on the condition of the Vesuvius. Thai is, Gorham, yvho built the boat, Withers who aRerwards put in her machinery, and Lawrence, who was in the employment of the plaintiff, as master of the Orleans fur some years previously to her sale. Harding and Seguin, the only examiners of the five really disinterested, were chosen by the defendant. Of these five, only Gorham, Withers and Seguin, were examined on the trial below. Harding was absent, and when we offered to introduce Lawrence, the plaintiff objected on the score of his being a stockholder of the Natchez Steam Boat Company, and the objection prevailed; now it is manifest, that the feelings and propensities of Gorham, as well as his interest and character, went.necessarily to shew the condition of the boat to be good : it is Stated moreover by Seguin, that he never before, in his long experience, knew an instance of ⅛⅜ builder of a vessel being one of the persons making a survey or examination of her. The character of G-orham’s testimony marks strongly his predilections; it is partial, involved and inconsistent. William C. Withers, another of the examiners of the plaintiff, confesses that he knew nothing of the state of the boat, but was guided more by the opinion of the other examiners than by his own judgment. The only important fact disclosed by this witness is, that, in his opinion, the Vesuvius was in better order than the Orleans, because he knew the Orleans was rotten twelve months before she was sold, Seguin was then in truth the only skilful and disinterested party to the report who examined at the time. This is stated from a conviction of its truth, and not from any belief that in the absence of his testimony the efforts of the plaintiff' to establish the good order of his boat could succeed.
    The steam boat Vesuvius was described to the Natchez Steam Boat Company by the plaintiff as a fine, strong, substantial boat, the best boat on the river; a boat, in fine, of which “ the character was too well known to need comment.’* This boat was described, moreover, as having been rebuilt, and launched on the 1st of January, 1817, that is one year and ten months prfe-cisely. At the time this description was made, ^ie *)oat ^iad a full cargo on board, bound from New-Otleans for Louisville, Kentucky; she» stopped at the port of Natchez for part of a day, utl([er circumstances which gave the purchasers no chance of examining or discovering any latent defects. We find that a com mittee of the company went on board of her, that the plaintiff pointed out to them in the engine room, as indicative of her strength and the substantial manner in which she was built, the magnitude of her timbers there in view ; but on one of I bis committee stating to the plaintiff that he supposed the other parts of the boat were as sound and substantial as those which they had an opportunity of examining, the plaintiff walked to another part of the boat, and the witness did not hear his reply. What that reply was, and what it was not, we can satisfactorily determine from the ordinary eharacteristicks of this transaction.
    In addition to this brief notice of the evidence, as it relates to the representations of the plaintiff, to the impossibility of the purchasers discovering the latent defects of the property, and to their diligence to that end; it may be necessary only to remark, that the Vesuvius was to be delivered in “ good order” and in the same manner as in the case of the Orleans. We will consider, first, how far the boat, at the time of proffered delivery, answered to the description of a fine, sound substantial boat, the best boat on the river, the ne plus ultra, &c. Upon this head the evidence is clear and distinct: the Vesuvius was not only not the Paragon thus described, but was inferior even to boats of ordinary pretensions. The defectiveness and rottenness of her hull were such, that if j^sea vessel, decayed to the same extent, she would have been condemned : and although she might engage in the river trade, and run, in the absence of accidents with comparative security, for two years, yet if another boat could be found, the witness would prefer that other for the transportation of his merchandize or himself. We find, moreover, that if tested by the rules governing insurance that this ne plus ultra would be classed iu the 5th or most inferior class for the. river trade, but if destined for any other trade, where subject to the winds or the waves, that she was too rotten and worthless to be classed at all. The testimony of Seguin stands entirely uucontroverted as to every important, indeed every minute circumstance of inferiority, decay and unsoundness. It is attempted to be shewn by Gorham that one third ol the important timbers beiug declared gotten is too large a portion, but,the rottenness itself is not attempted-to lie denied, and the cha-rac¿er 0f Gtorham’s proportional calculations do not, in point of fact, affect the question if admitted as true, but tlieir propriety and probability will best appear by his testimony already referred to. The exhibition of Gorham’s testimony by the plaintiff’s counsel is followed with great felicity by a kind of algebraical calculation, as to the relation of. the parties damaged to the whole, by which it would seem that the rotten parts only bore a proportion of about one seventieth or one ninetieth to the entirely of the materials composing the boat. With the same propriety, as regards the merits of this cause, might the gentlemen have occupied the time of this court in endeavoring to prove the relative magnitude of the soul to the grosser materials of the body. The plaintiff went into testimony in the eourt below to shew that the Vesuvius traded to Natchez in 181 ⅛ and 1815 — and, that since ¡he Natchez Steam Boat Company must have known her age, character, &c. But, was the Vesuvius represented to us as a boat of 1⅛14 or lsto? No: she was a boat rebuilt, according to the representations of the plaintiff, and launched on the 1st January, 1817 — this is shewn by all the testimony: and the plaintiff when exhibiting the engine room to the committee of the campa-ny, anti pointing onHhe strength of the tinf ~rs, dwelt upon the rebuilding, and illustrated the manner-of its execution by what was in sight ? and declaring the whole to have been done under his immediate é and inspection,
    Yet, strange to say, this-an old vessel repaired : her upper works new and of the fine and durable timber of Louisiana, while her keel and timbers most subject to exposure and decay, and most essential to the value and security o? the boat, and wholly excluded from examjnaT tiom were old and of the inferior timbers of Pittsburg.
    It is certain, that %e general belief wasj %at ⅛⅛ Vesuvius was the finest boat on this river, IPhe opinion proceeded from the idea that she had not ⅞⅝⅜⅜ repaired simply, bu4 rebuilt^ an® so rebuilt as to make her as good as new. Her appearance in the Water did not conflict with this prevailing idea, hut the plaintiff kueiy the-Contrary; and we now know it, ⅛
    In marine architecture a distinction is tá-ken between rebuilding and repairing:’ the giving a vessel a new keel, is that which seems necessary to constitute a rebuilding; for if the work be on the old keel, it is usually denominated a repairing. Reev. law sKippiiig;, ,3 ⅜⅜⅞⅛ ch ⅜⅛ 7 — -Lex Mer. Am. ⅛8.
    
      distinction is warranted by reason as well as authority, and the testimony shews that not; only the keel but the futtocks and the most essential timbers of the hull were all old and rotten.
    The fifth ground relied on by the defendant is, that there being precedent conditions to be performed on the part of the plaintiff, he must nut only aver but prove that he was ready and •willing, and competent to' perlbrm all required &f him by the contract.
    This principle is well settled by the common law bonks, and has received the sanction of the supreme court of the- United States. A
    jÉt the time of delivering this boat the plai’U-tifif was ?to make a conveyance vesting clear and perfect title to the company. So far from tendering this; convey anee he has not shewn it was in his power to convey.
    The counsel for the plaintiff meet this ground of defence by saying that the court can make the conveyance a condition of their decree. It is rather a novel doctrine that the court have the power to make out a case for the plaintiff^ which he has not made but for himself.
    The title papers of the plaintiff should have been exhibited, with a tender and conveyance such as he covenanted to make.
    There is nothing before the court which would enable tliemto say that it is in the power of the plamtitt to convey.
    Can they with propriety decree that the plaintiff shall execute a conveyance vesting a clear and indisputable title, free of all liabilities and in-cumbrances, until he has clearly shewn himself not only willing, but competent, to make such conveyance ?
    The court would enforce this duty on the plaintiff before he could recover, from another weH establisheuerule of law, that multiplicity of action Should not be encouraged. If the court was to decree in this case in favor of the plaintiff, and it should afterwards appear that he had no suificitsh title, it would drive the company to another action.
    But, again, the plaintiff has actually spread upon the record evidence shewing th 't he has long since abandoned the boat; nor is there any proof that, since the abandonment, he has reclaimed and put himself in a situation to deliver the boat, much less make a title to her.
    In Ramsay vs. J>hnsi v, Lord Kenyon says, the plaintiff must prove that he was prepared to tender and pay, if the defendant was ready to receive, and even this is a relaxation-from a former but more rigid rule: and Wheaton furnishes a still -stronger case. ⅜. East. 208- — S Wheaton, ¾90.
    The sixth ground relied on by the defendant - is, that this contract was not proved according- ^ tjie |aws 0f Louisiana, which were indispensable to recovery.
    It was intimated by the court, that the question had been adjudicated in a former case. We have not been able to turn to the case to which the court alluded ; and, as we do not know toe extent of its applicati'ji, any manifestation of confidence ou our part, on this question, will not be imputed to any want of regard and deference to the intimation to which we alluoe.
    The principles of the law of evict ee, however unsettled in many respects or subjected to the fluctuations of opinion under various judicial systems, are under ours, on this subject, at least, regulated by positive law.
    As the proof of this contract may be considered as applicable to the rules of evidence, as well as to the form of action or remedy enforcing it, and the operation of the lex fori, in this respect, has been strongly contended for by the plaintiff’s counsel, to be consistent, they cannot object to our requiring proof of the execution of the contract, by our own laws.
    As to acts under private signature, two modes of proof are established. 1st. The acknow-ledgement of the parly against whom it is ad vanced. Civ. Code, 806, art. áS4. Sdly. By the signature of the party being proven by one witness who saw the. obligation signed, or by two persons, skilled in hand writing, appointed by the judge for that purpose. Civ. Code, 306, art. 226.
    
    The party charged is obliged formally to avow or disavow his signature. Civ. Code, 306, art 225. If he avows his signature it amounts to full proof against him. Civ. Code, 3 id, art< 257.
    
    If the party charged does not avow his signature, must it not be proven by him who claims the execution of the obligation ? If he does deny, that is disavow it, there can be no question.
    Is not a general denial, by a defendant, of all the facts set forth in the petition such a formal disavowal of his signature, to an act under private signature, as will put the plaintiff on the proof of it?
    If it does not, then such general denial mnst be deemed an avowal of such signature, for it is certain the act must be established in some way, and if not estábil bed by the defeiKknfk' counsel, it must be proved.
    
      It cannot be contended that, in the absence of a formal disavowal, the act is to be considered as proven $ a fortiori it cannot, if there be a de* nial however general. "f
    
    The party couid not even obtain a judgment'’ by delauk, a lihout proving the execution of this' writing. Snail our rignts be weakened by a denial of its execuuon ?
    The counsel lor the plaintiff were well aware that this execution of tne contract must be proved, or no recovery could be had , and great pains and labour were evinced to obtain the proof that was produced; and what does this proof amount to? Not to the proof required by our codi-, but only to the handwriting of the defendant and the witness.
    And how is it that the counsel for the plaintiff obviate the difficulty? By telling us they have given the proof required by the principles of the common law. Our situation is truly a lamentable one, if this happy facility of calling in the common law is to render nugatory the express provisions of our own code, and this too after an admission by the plaintiff’s counsel that the laws of Louisiana were to govern in enforcing the remedy under the con'raet, and an ineffectual attempt to prove it according to these laws.
    
      Previous to closing the defence it would be well to advert to the rules of interpretation, which wiJl find the ready sanction of the court m the construction of the contract.
    *‘'s“ In agreements, we must endeavour to ascer-i ⅞ . "tain what was the common intention of the parties, rather than adhere to the literal sense of the terms.” Civ. Code,'⅜⅛0, art. 06.
    “ In a doubtful case, the agreement ⅛ to be interpreted against him who has stipulated, and in favour of him who has contracted.” Civ. Code. 270, art. ⅜3⅞.
    Here the plaintiff has stipulated to deliver the boat in good order : if doubts arise as to what > as meant by the use of this term, the writing must be construed against him who has stipulated.
    The seller is obliged to explain clearly and distinctly which is the thing that is sold, aud in what it consists, its qualities, defects, and every thing that may give occasion to any error, or misunderstanding, and if there is in his words any ambiguity, obscurity or other defect^ they are to be interpreted against him. Dom. ⅞. 1. t. 2. § 2. a. 14.
    “We ought to examine what was the common intention of the contracting parties, rather' than the grammatical sense of the terms. Po• thier.Obl. 11. 91.”
    
      The translator of Pothier, in treating on tht subject of interpretation of contracK'S'4**^'1' ⅜ every contract derives its effaggfrdE tion of the parties, that inteut^hj^as or inferred, roust be the ground apd" of every decision respecting 'its| extent, and the grand object of considet^tjc every question with regard to its construction.’* 8 Pothier, n. d. Vide also 5 chap. Shepherd Touchstone, 1 F/mblanque Equity, b. Í, c. 6. Powell on Contracts, head i( Interpretation.”
    
    By adverting to these and other modern authorities, it will be found, that in pursuance of this great and leading principle, “ the intention of the parties,” the courts of our own as well as other countries, as the science of jurisprudence has advanced, have unshackled themselves from the unjust restraints imposed by the earlier, but arbitrary rules of construction, as well in contracts as in treaties.
   Martin, J.

delivered the opinion of the court. Our attention in the decision of this cause is first claimed by several bills of exceptions.

1. The contract between the parties having feeen produced by the plaintiff’s counsel sub* r:be<l and st$}ed by the defendant, and at Hfyfcd by a subscribing witness, and proof '.made the .0,⅜⅞#»*1⅛1¾ of both the defendant and latter being shewn to reside out of ⅛⅜⅜-8⅛¾⅝,: the defendant’s counsel objected to its and the district court overruling ⅞⅛11 of exceptions was taken.

We are of opinion that the district court was correct. The witness being out of the jnrisdic-of the state, his attendance in court could not lie compelled, neither could it be before a commissioner. His testimony, thus affording the best evidence of the execution of the instrument, was not, in the power of the plaintiff, who therefore was for this very reason dispensed fr m producing it. The defendant’s signature, as it was not formally denied, was properly proven by a witness acquainted w ith his handwriting. Clarke’s ex.’s vs. Cochrane, 4 Martin, 360.

2. The next bill of exceptions is to the opinion of the district cour* in ordering the. reading of a report of certain individuals, appointed by the parlies, offered by the plaintiff, for the sole purpose of lessening the credit due to the deposition of one of these indi iduals, examined as a witness for the defendant.

It appears to us that this report,^dtiioiig| was not sworn to, was properly admitted J the purpose of shewing a discrcpajcy ⅛6⅜⅜⅛⅜¾ the statement to which the witniM'®fe| and that in ilie report which he ha&^pSSi /by his signaiure. It is in every «1⅝⅜8^[⅛1⅛⅛⅛.> to prove dect»rations made by «f'Svitness trarv to vvnat lie swears : but the usd'"®-⅝¾⅞1 ' evidence must always be restricted to what was the avowed object of the plaintiff, who otiered it, viz. to lessen tue credit of the w ituess.

3. The third bill was taken to the opinion of the court in sustaining an objec ión of the plainuft’s counsel to the following question put by the defendant to Commodore Patterson, a witness introduced by the former, for the purpose of establishing the soundness of the Vesuvius. “ if y on liau contracted for the purchase of a steam boat, in ail respects sound and in good order, and a boat had been tendered to you, under this contract, with one third of her important timbers, including her lower tuttocks, rotten, would you deem such a boat answering the description in the contract, or being in all respects sound and in good order ?”

"VYe. are not apprized, by any thing on the record, of the nature of the objection to which the district court judged this question liable, and iwe believe it ought to have been answered ; al-%hongh it might perhaps, which we do not-de-termiri'ej^UítVe^heen modified, so as to answer the ⅝⅜ by limiting the supposed, case -o that of .^te^tjjljoatingood order; instead of extending ⅜'& was done, to tiiat of a boat sound and in good order. As this bill, however, was taken by' the defendant, and the aiost favorable answer could not avail , him, the stipulation being for a boat in good order, and not for one sound S|iand in good order, we think it useless to remand the case on this account.

4. A fourth bill was taken by the defendant’s counset on the refusal to swear Charles K. Lawrence, in chief ; this gendeman having on his voire dire declared, that about the 24th of Xo-ve,nber, 1818, he purchased ten shares in the Natchez Steam Boat Company, andexpeced to pay his proportion of the price of the Vesuvius, if this court declared it to have been purchased by that company.

The interest, which this witness has in the present action, was sufficient to repel him. But it was contended that he acquired it, by his own act, after the contract now sued upon was entered into, and consequently that he could no*, by so doing, deprive the defendant of the rigid which he bad to his testimony. The record does not shew wbether|he fact, which he was called uponjl to establish, ivas/an revi or to his acquisition of T the Starrs; although the;''circumstance <f its * date being particularly set forth, raises some-presumption that such is the case. But the bilT'\^ -of exceptions is one of the defendant’s, whose duty it was, if any particular circumstance en-ilied him to the testimony, notwithstanding the interest of the witness, to have made it clearly appear, in order to take the case out of the general rule. This we cannot presume, and are consequently hound to conclude that the d'-drict. c nr! correctly refused to swear, the..witness' in' chief, as the bill does not enable us to say that it erred. We do not, however, wish to he understood-to determine that a wi ness who has ac / ¿red an interest by his own act, since the party vvho offers him had a right to his test! tony, may be sworn : a question which admits of considerable doubt. Phillips on Evidence, ⅛⅛. ¡03.

5. T¡ e last hill is on the refusal to per nit the d lant to offer in evide ce what Samuel A. Bower, a itness introduced by him, ad iieard ti e o»**rk of the stea m boat say. It s.difficult to tea on wual ground he could have been permitted so relate this. Hearsay is not evi seuce.

The plea in abatement appears to us to havo.H-been correctly over idJ^TThe. dt was; ie contract. KTISk. i'* •• stock! aoftt. oit¿é^Sjlj|j$jf0 pftadfilgs to be Phe Nitáhez Steam Boat Company, and, scribed tiife contract. According to the ¿I law of England which is shewn to prevail,in the state of Mississippi, aii the members of ¿⅛ ⅜ unincorporated company are, bptfj|d,.'.as member of ordinary partnerships^iiE&i^l, 6. «’11⅜ have been en ered ⅛ iff contract is clearly shewn into by the authorised agents of the c acting Within the powers delegated to them; and cases are cited ill which a partner orUgent, contracting under his own seal, as the defendant j|did in this case, becomes personally bopnd.

The nature, validity and effects of this contract must be enquired into, according to the laws of the country, in which it was celebrated, even when the delivery of the tiling, or the fact stipulated for, is to take place abroad, i GaVison, 875. Were we to test this case by the laws of this state, still the, defendant wuld he found under a liability, as a member of the company, upon a contract entered into with ids consent. But he shews that, in the state of Mississippi, his plea would prevail on the principle recognised in the use of Rice vs. Shute, viz. that a partners the sued sluoe, may abate the suit naming his co partners.

&K Here hits sqjMibt for and to be administered cases of solidary obligations Jjwhich are the joint and several obligations of the common-law, existing hetweefni partners) the creditor may sue either of hil debtors alone, and is not bound, even on the plea of ^ latter, to bring all or any of .the rest of the co-debtors in court. But it is contended that the act of the legislative council, 1805,'St>, requires, that the petition should contain, the names and residences of all the parties, and that the seventy and odd persons, named by the defendant in his answer, were parties to the contract, and their names not being in the petition, the suit must abate. The act, in.our opinion, requires the insertion, in the petition, of the names and residence of parties to the sui¿ alone, not of the the parties to the contract, on which the suit is grounded.

Partners cannot, by any clause in the partnership contract, alter the joint and several liabili. ty, which the law imposes on them, in favor of those with whom they contract. ,-Watson, 172, ■m.

We cannot admit that the^act.-by which the company was

that the plaintiff g|i|gjj|p|e did not comply with |r|§tby which he ⅞<⅛ by which be bottrSfcS|m t ift ^ood order ; :⅜8¾»1|⅛ ha^^yjjMp^me her head beam broke^^ei; boílef iéÍMrk and a considerable pall' of Séí-main timbers defective or rotten. ,⅞ • -

It is true her head'beam, a considerable piece in the machinery of a steam boaf,was broken and fished. But the plaintiff shews _ thfob*$|fc?>was, by an accident which happened since 'f^^eontract was entered iiito; that, as soon as he heard of it he ordered a new one to be made inJfejfc-York, which was on the way at the tjkne «f Jlktender, was offered to be delivered.#! Us arafinl, has since arrived and has been puf in the Jfjlace of the broken one. If, however, the plaintiff did not shew any thing else, this circumstance would most likely be holden, as a justification on the part of the defendant in refusing the boat. But the plaintiff shews that the defendant was satisfied with the measures taken1 for vprocuring a new beam, and assured the plaintiff that if there were no other deficiency in the boat; this would he waived Had the defeat the insufficier; to have thus wm himself of ought not jject,.thereto. ⅜⅛ such a case', fife pláiut have procured another fie boat on the river. We ther objection cannot prevail.

' It is further contended old and leakv. The age of it appears to be that of the boat, and'the presumption is that the vendees could not well expect a newer one. The witnesses inform us that all boilers leak and lose some steam, and that this does not appear very deficient in this respect. But*, it is ailedged that it was worse than it appeared,.because, befne the examination, the plaintiff, in order to hide its defects, caused, it-to be covered with a thick coat of oil andBLuipnlaafe. It is in evidence that this was tlfHÍe without any order from the plaintiff; that it is done at the end of every voyage, and even oftener, is necessary to guard the iron from the rust, and constitutes a part of what is called putting a boa in good order. Farther, it is in evidence that the ven-dees had a fair opportunity of viewing and ex» amining the boiler before the contMcfr

A conshlenble number of pieces of tin her, which at first appeared to this court as of material importance, are shewn to be defec ive and i . . rotten, but on adose examination ot the testimony,and more mature reflection, they think these first impressions must yield to the depositions of carpenters, masters and owners of snips, examined on this head. These, almost unanimously assert, that notwithstanding the rottenness and defects of these pieces of timber, they consider the boat tobe vihat is understood by a boat in good order. They make a distinction, to which the court has with great reluctance yielded, between a boat in good order and a sound one. They seem to allow the epithet of sound to ships on their first voyage only, and assert that afterwards every ship lias some rotten and defective timber. Yielding, therefore, to the weight of the testimony in this respeci, we are hound to say that the boat was in good order when she was tendered, if we except the absence of the new head beam, which the defendant did not complain of. and which would, he declared, make no difference : and this piece of machinery has since been supplied within the time mentioned. Further, it is in evidence, that the old head beam was in a condition to serve until the arrival of the new.

The contract of sale describes and ascertains the quality of the boat bargained for — a boat in good order : a worse could not have been tendered; a better cannot be insisted upon.

We leave out of view, as we are bound to do, all the conversations and correspondence of the parties before the contract. The conversations cannot affect the literal evidence. Every point started in the correspondence, if it does not, appear in the contract, is abandoned and merged in the written agreement.

The defendant further urges that the plaintiff' ought not to recover, because he has not proven, nor even alledged his capacity and readiness to make the conveyance stipulated for. We think this was unnecessary. He needed not to al-ledge his capacity, for bis own title or conveyance was alone stipulated for. As to his readiness or his actual tender of the conveyance, the conduct of the defendant rendered an allegation or proof of these useless : for the defendant declared his unwillingness that the contract should be carried into effect, so that any further step on the part of the plaintiff was vain and useless., Lex neminem cogit ad vana.

It appears to us that the district court erred in making a deduction of 820,000, a sum greater than that which it is proven would be require-! to repair the boat entirely, by substituting a new piece of timber to every decayed une. The boat was not sold as a new and perfectly sound one. According; to the testimony, the vendees could not expect to find her without some decayed timbers. If the principle that a sound price implies a sound ware was to be understood, as the district court appears to understand it, no vessel could be sold for a sound price after her first voyage: for the witnesses depose that every vessel has some decayed timber after her first voyage.

The contract shews that the vendees were willing to give 65,000 for a boat which they must have known to have decayed timber in her. They stipulated that she should be delivered in good order, and this, on a close examination of the evidence and the best judgment we can form, means only in such a condition as to be fit tobe employed immediately and during a reasonable time, without any repairs, and in this condition was the Vesuvius tendered by the plaintiff.

He is clearly, in our opinion, entitled to receive the price he stipulated for; and we deem ourselves bound to say, he is entitled to recover it from the defendant, not as chairman, as one of the directórs*\nor ⅛8 agent of the company, but as a stockholder, airiember of it. - In unincorporated companies, like in all other partnerships, according to the law of the place where' confrac(- was entered into and the domicil of the defendant, the members are jointly and severally liable : either of them may be coerced for the whole debt, an evil consequence which an act of incorporation can alone prevent, though it cannot remove it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be aunuiled, avoided and reversed, and this court proceeding to pronounce such a judgment, as in their opini on, ought to have been given in the district court, do order, adjudge and decree that the plaiutiff do recover from the defendant the sum of sixty-five thousand dollars, to be discharged by the payment of fifteen thousand dollars with interest, at the rate of five per cent, a year from the inception of this suit, and the delivery of tiie notes of the Natchez Steam Boat Com.>any for the sum of fifty thousand dollars in four instalments at three, six, nine and twelve tno iths from the nineteenth of February last. But no execution shall issue till the plaintiff shall deliver to the vendees, qr lodge for them ip thecdficp qftheclerk ®f the ,<d|stviot ' ’ . court a conveyance pf the ateam boat Vesuvius, according to the terms of his contract : and it is ordered that the defendant pay costs in both courts. t

See same case, December term.  