#### MONTGOMERY'S CASE. Robert H. Montgomery, appellant, *v.*The United States, appellees.

(5 Court of Claims R., p. 658; 15 Wallace R., p. 395.)

*On the claimant’s Appeal.*

*After the occupation of New Orleans by the United States forces in*1862, *a factor there sells to a loyal citizen, also in New Orleans, a crop of sugar and molasses, then beyond the United States military lines. The crop is the property of one J., a rebel living within the rebel lines. The factor has a Men upon theprop-erty and an authority to sell given by the owner before the war. ■ But the contract of sale is silent as to the lien and describes the factor as the agent of J., and the crop sold as*“belonging to said Johnson, contained in bis sugar-house and pm-gery on bis plantation.” *The crop is subsequently captured by the army while still on the plantation, is sold, a/nd the proceeds paid into the Treasury. The purchaser brings suit for the proceeds as owner of the captured property. The Court of Claims decides that the agent of the original owner, J., could not pass avalid title to the purchaser. Judgment for the defendants. The claimant appeals.*

A factor residing in New Orleans both before and after its capture, baying a lien for advances on a crop of sugar beyond tbe military lines, with authority to sell given before tbe war began, cannot pass a valid title to tbe crop as agent of and in tbe name of bis principal within tbe rebel lines. Tbe factor may sell bis own lien, but not tbe property or interest of bis principal. Such a sale is a transaction between enemies, tbe effect being to protect enemy’s property from seizure or confiscation, and it is absolutely void.

*The Reporters’*statement of tbe case:

The case was argued at great length by the counsel for the appellant upon the question whether the contract hereafter set forth contained the elements of a complete sale which at common law and by the law of Louisiana would pass the property to the purchaser. The Supreme Court, however, has placed its decision entirely upon the question of international law, viz. : whether the transaction was one between enemies. The following are the material facts found by the court below:

That the claimant, on the 9th day of September, A. D. 1862, within the city of New Orleans, purchased of the firm of *83J. W. Burbridge & Co., loyal persons to the United States, and residents of and doing business in New Orleans, through the agency of Thomas D. Harris, who was the confidential book-keeper and general agent of said firm of Burbridge & Co., all of the sugars, molasses, and rum then situate and being on the sugar-plantation of Leo. L. Johnson, near La Fourche . crossings of the Opelousas Railroad, and the following written agreement of sale, and order for delivery of the same, were then entered into and made:

“ Know all men by these presents that it has been agreed, and it is hereby agreed, between the undersigned, as follows, to wit: Thomas D. Harris, acting as the attorney-in-fact of J. W. Burbridge & Co., of this city, the agents of Leo. L. Johnson, of the parish of La Fourche, in this State, has sold, and hereby does sell, unto Robert H. Montgomery,, of this city, the following crop, belonging to said Leo. L. Johnson, contained in his sugar-house and purgery, on his plantation, in the parish of La Fourche, near La Fourche crossings, to wit: Six hundred and five hogsheads of sugar, se.ven hundred barrels molasses, and three hundred barrels rum, at the following prices, to wit: For • the sugar, at 4-J cents per pound; for the molasses, at 20 cents per gallon; and for the rum, at 50 cents per gallon, the weight and quantity to be determined at the time and upon the delivery thereof in New Orleans.

“ The said Montgomery, in consideration of ,said sales so to him made, has paid, in ready money, the sum of $5,000 to said Harris, attorney-in-fact aforesaid, the receipt whereof is hereby acknowledged, and accepted as so much on account of the first sugar, molasses, or rum delivered to him, said Montgomery, as aforestated; the balance to be paid by said Montgomery at each future delivery of said sugar, molasses, and rum.

“ Thus agreed, and done in duplicate, at New Orleans, this 9th of September, 1862.

“J. W. BURBRIDGE & CO.,

“ per THOMAS D. HARRIS, *Attorney.*

“R. H. MONTGOMERY".

“Witnesses: '

“ Jno. L. Cavanna,

“ J. C. McAllester.”

*84“New Orleans, *September*9, 1802.

“The overseer on the planfcatiou of Leo. L. Johnson will please deliver to the order of Eoberb H. Montgomery the entire crop of sugar, molasses, and rum contained in the sugar-house and purgeries, '&c., on said plantation, the same having been sold to him this day.

“ J. W. BUBBBIDGE <& CO., .

“Per T. D. HABEIS.”

That all the parties to thp contract of sale resided in New Orleans; that the sugars and produce in question then being situated outside of the Union or American lines of occupation, no actual delivery was made, or possession taken of the same, nor was any attempt made so to do until said sugars were brought within the Federal lines by the forces of the United States; that the firm of Burbridge & Co. was composed of J. W. Burbridge alone; that at ’ the time of the making of the contract he was at the North, and Thomas W. Hams was his general agent, in charge of his business in his absence, with authorized power to act for him.

That the sum of $5,000 was paid on account of said purchase, at the date of the agreement, as in said contract of sale is stated; $9,000 subsequently; and the price agreed to be paid, was a fair value for the same, where the sugars then were.

The court further find, and certify the fact to be, that Bur-bridge & Co., for two years' prior to May, 1802, had been the factors and agents of Leo. L. Johnson, and had made advances to him to enable him to make his crop on the Webster plantation, and that Johnson’s indebtedness for such advances prior to September 9, 1862, amounted to $131,360.

And the court below refused the following finding as irrelevant, upon the ground that the sale of the captured property was made by Burbridge & Co. for and in the name of Leo. L. Johnson:

That the custom and manner of doing business at New Orleans, where factors make advances to planters in money, and in such articles as they may want, to enable them to make their crops, the factor has a lieu or privilege upon the crops so made for his advances. That in such cases the factor oftentimes makes sale of said crop lying upon said plantation, or at New *85Orleans, as may be most convenient. That by such usage and custom the planter cannot make sale of his crop to defeat the factor’s lien without first paying him the amount of his advance.

That Burbridge & Co. were authorized by Leo. L. Johnson, and as a part of the original agreement made between them, to have a lien, and he was authorized to make sale of the crop of sugars and produce on the plantation, for the purpose of reimbursing him the amount of his advances.

The sugars, &c., in question were of the crop of the years 1860 and 1861. Leo. L. Johnson resided on his cotton plantation in the State of Arkansas, and within the rebel lines.

ilir. *T. J. D. Fuller*for the claimant, appellant:

It manifestly was the intention of the parties to this contract to have the title pass, whether they complied with all the formalities of a legal sale or not; and upon this point the following citation of authorities is made: *Biddle*v. *Varnum,*(20 Pick., p. 280;) Benjamin on Sales, p. 227; *Turley*v; *Bates,*(2 H. *&*0., p. 200;) *Logan*v. *Le Mesurier,*(6 Moore, P. O., p. 116;) *Hind*v. *Whiteham,*(7 East, 558.)

In the case at bar the sale was of all the sugars on the plantation, and no separation was to be made; *the whole was individualized as the suhjeet-matter of sale.*

Assuming that Burbridge & Co. were the factors of Leo. L. Johnson, and had made the advances to the amount specified, in the years 1860 and 1861; and, by agreement with Johnson, had a lien on the crop of the plantation, and had authority to sell the sugars to re-imburse themselves for the advances so previously made, does the terms or language of the contract of sale divest them of that authority ? The answer is, reading the contract in the light of then existing facts, the expressions “ *agent of Johnson,” u the property of Johnson,”*are merely words descriptive of the property sold, to 'identify it.

Burbridge *&*Co. had a power, coupled with an interest, in and over the produce of the plantation. The fact, that afterward they became opposing belligerents, would not divest Burbridge *&*Co. of any vested interest in the property previously acquired. At most, Burbridge & Co.’s interest'in the property, and the right to take possession, would only be suspended and held in abeyance until the existing disability should *86be removed. Johnson was no party to the sale ; bis assent or dissent would not in any wise affect the interest of the parties to it. If the *jus disponendi*was in Burbridge & Oo.; if they described the property as belonging to Johnson, they or their vendee1 are not estopped by it as an admission conclusive against them. It does not lie in the mouth of the appellees to raise this objection. As between Montgomery, Burbridge *&*Co., and Johnson, if the title passed, the United States should not be permitted to object.

Burbridge & Oo. were, at all events, the special owners of the property, if not general owners. If their special property exceeded the value of the general property, or if, as security, it was less than their debt, they could convey a title to the property co-extensive with their lien. The debt for which they held alien on the property was double the value of the property itself. If the property was of greater value than the amount of their lien, they had the power to sell, and would at best be only the trustees of Johnson for any surplus over and above the sum necessary to discharge their lien.

Upon the question of the authority of Burbridge & Oo. to sell the sugars, the following cases are cited: *Mitchell*v. Winslow, (2 Story B., 644;) *Simonds*v. *Ribbert,*(1 B. & M., 719;) *Sulli-ycm.v.*Tuelc, (1 Maryland Decisions, 59.)

Property in goods is either general or special; there is no intermediate property. For instance, the general property in goods levied upon under execution is in the debtor; the special property, in the officer making the levy. The general or special owner may maintain trover for the goods. *Ingersoll*v. *Van JBoMclein,*(7 Go wen, p. 670.)

This court held, in *Anderson’s*Case, under the captured and abandoned property act, that the United States, as to loyal persons and friendly neutrals, hold the proceeds of the property in the light of trustees. In this case, under the proclamation of General Butler and of, his General Order 91, the case is even stronger; for these acts of General Butler have received the approbation of the Government, and- were so recognized by this court in the case of the *Venice,*(2 Wallace, p. 259.)

That the sugars were in rebel territory constitutes no objection to the validity of the sale, as the contract was made within Federal territory between loyal persons there living. It could make no difference to the United States which one of - its own *87loyal citizens was the owner for the time being of personal property within the rebel lines. And whether the property was real or personal, it was equally- a lawful subject-matter of sale and transfer from one loyal citizen to another, provided no act was done violating non-intercourse, as the case finds there was none in this instance.

Again : by the local law of Louisiana, Burbridge *&*Co. had authority to sell the crop, to re-imburse themselves as the factors of Leo L. Johnson for advauces made to him to enable him to mate the crop. It had this authority from the custom and usage of business between factors and planters.

It was further strengthened by an agreement, specific and definite in its terms, between Johnson and his factors, Burbridge & Go., that the latter should have the customary lien, and, in addition thereto, the right to sell the crop for the purpose of re-imbursing the advances; and this agreement was coeval with the advances as early as the year 1800.

*Jlr. Assistant Attorney-General Sill*for the United States, appellees:

Assuming (what will be considered hereafter) that the title to this sugar mentioned in the contract between Burbridge and the claimant would have passed thereunder if the contract were legal, it is contended that the contract was void. It was a sale, by the agent of ah enemy, of property in the enemy’s country to an alien friend residing in this country. Burbridge did not pretend to sell the sugar except as Johnson’s agent; and it is • therefore unnecessary to consider whether the sale would have been valid if the sugar had been the property of Burbridge. He sold it simply as agent of Johnson, and 'his act was therefore Johnson’s act. The sale, therefore, was an act of commercial intercourse between enemies, and was illegal and void.— *United, States*v. *Lane,*(8 Wall., 185;) *United States*v. *Grossmayer,*(9 Wall., 72;) *Kershaw*v. *Kelsey,*(100 Mass., 561.)

But by the occupation of New Orleans, the relation of principal and agent that had previously existed between Burbridge and Johnson was dissolved, and Burbridge had no authority to make any sale of Johnson’s property, and no contract made by him in relation thereto could pass any title to the purchaser.

The contract between the claimant and Burbridge, if legal, did not pass the title in the property. It amounted only to an executory contract of sale. “ Where anything remains to be *88done to the goods for the purpose of ascertaining the price, as by weighing, measuring, or testing-.the goods, where the price is to depend on the quantity or quality of the goods, the performance of these things also shall be a condition-precedent to the transfer of the property, although the individual goods be ascertained and they are in the state in which they ought to be accepted.” — Benjamin on Sales, 221, 222, et seq., and cases cited; *Logan*v. *LeMesurier,*(6 Moore, P. C., 116;) *McDonald*v. Hewett, (15 Johns., 349;) *Ward*v. *Shaw,*(7 Wend., 406;) *Boswell*v. *Green,*(1 Dutcher, 390, 398;) *Mitchell*v. *Commonwealth,*(37 Penn., 187;) *Weld*v. *Traip,*(14 Gray, 330.)

That this is the law of Louisiana is shown by the cases cited by Chief Justice Casey in this case in the court below. (5 C. Cls. B., 658-660.)

Mr. Justice Strong

delivered the opinion of the court: ,

Whether the contract under which the appellant claims to have become the owner of the sugar, molasses, and rum was so far executed that, without more, it would have passed the property, had it been legal, it is unnecessary to consider; for we are of opinion that, whether executed or executory, it was illegal and void. It was a clear case of trading with apublic enemy. The subject of the contract was personal property within the Confederate lines. It was a crop at the time on the plantation of Leo. L. Johnson, in the parish of La Fourche, near La Fourche crossings. It belonged also to Johnson, who was then domiciled in the enemy’s territory, and who was himself an enemy. This is expressly stated in the contract itself. The appellant’s right, therefore, is founded upon an attempted purchase, during the war, from an enemy, of enemy’s property, in direct violation not only of the laws which always prevail in a state of war, but also in violation of the acts of Congress. It is vain to contend that any right can be acquired under such a contract.

It¡is true the sale was negotiated by agents of Johnson living-outside of the enemy’s territory, but it was not the less his act because it was done by those acting- under-his authority. Nothing is clearer, says President Woolsey, than that all commercial transactions of whatever kind (except ransom contracts) with the subjects or in the territory of the enemy, whether direct or indirect, as through an agent or partner who is neutral, are illegal and void. (Woolsey’s International Law, sec. 117.) This *89is 110b inconsistent with, the doctrine tbat a resident in tbe territory of one belligerent may have in times of war an agent residing in the territory of the other belligerent;, to whom his debtor may pay the debt, or deliver property in discharge of it. Such payments or deliveries involve no intercourse between enemies. The present case exhibits a transaction not wholly within enemy’s territory, bat a’ sale from an enemy to a friend. If that can be made through an agent, then the rule whi,ch prohibits commercial intercourse is a mere regulation of the mode of trade. It may be evaded by simply maintaining an agency in the enemy’s territory. In this way every pound of cotton or of sugar might have been purchased by northern traders from those engaged in the rebellion. Perhaps the rule is stated too broadly in Woolsey’s Commentaries, and in many elementary books, but it is certain that “ every kind of trading or commercial dealing or intercourse, whether by transmission of money or of goods, or orders for the delivery of either between two countries, (at war,) directly or indirectly, or through the intervention of third persons or partnerships, or by contracts in any form looking to or involving such transmission,” are pro*hibited.*— Kershaw v. *Kelsey,*(100 Mass. R., 561.) The contract in this case contemplated the delivery of the sugar, molasses, and rum at New Orleans, then within the Federal lines. There, on its being weighed and measured, payment was to be made to Johnson’s agents. If this be allowed the enemy is benefited, .and his property is protected from seizure or confiscation.

It has been argued that because Burbridge.& Co., the agents, had a lien upon the property for advances made by them, and had also a power to sell for the repayment of their advances, the sale which was made ought not to be regarded as a sale by Johnson. Yet the only authority they had to sell at all, resulted either from express power given to them by the owner, or from the relation to him in which they then stood. They might have sold their lien, or the debt secured’by it; and had they done so, the sale would have involved no trading with the enemy. But they undertook to sell Johnson’s property, describing it as such in the instrument of sale, and describing themselves as Johnson’s agents. Yery clearly, in effect, the parties to the transaction were the appellant and a public enemy.

For this reason the judgment is affirmed.