The daily union. [volume] (Washington [D.C.]) 1845-1857, 1849-09-25

Messrs. EDITORS Allow me to call your attention 10
point y Inc case made y the correspondents between
perceive has not been advered TO in the various com
meniaes which that correspondence has called forth
French Gentleman who complains Of the decision o. ~, ,be
court martial IN his case, is injured man. sorry
thai the whole case was not submitted BY Mr. Clayton to
the Attorney General for his opinion touching the merits
Of Mr. Ports claim, for think he would have taken
ierent view, both of the law and the facts from that
taken by the Secretary Of State and thus, perhaps the
whole difficulty with the French minister, so far as the
claim Of Mr.. Port is concerned avoided
The following principles, take it, will not be contro-
verted
l. In every contract Of sale there is warranty Of title
on the part of the vendor, unless the same be guarded
against by the express terms OF the contract.
Where the contract has been executed, the purchase
money paid and the goods delivered, il the goods be af
forwards focby taken from the possession OF the vendee
by the vendor under the claim Of right rescnd and
the vendee be without fault the measure OF damages
upon legal investigation, will be the value OF the goods
al the time oil the reception, together with costs and
charges.
g. The damages, however, may be mitigaied by sue.
cessully assang the bona des of the vendee, in the in
cepon consummaton oil the contracts and the French
and Italian courts carry this principle FAR as in some
TO refuse TO fraudulent vendee the return OF the
purchase money paid BY him.
a. But a simple knowledge OF the fact that the goods
which constitute the subject Of the contract were claimed
by third person, derogaton OF the right OF property
claimed by the vendor il brought home TO the vendee
previous to the contract will not be sufficient TO operate
s. For the purpose OF eifectug mitigation OF damages
evidence must be put in by the vendor, showing some
fraudulent act Or representation on the part Of the ven
OF his claim 10 the right OF property in the goods the
subject Of the contract, and by which the vendor
prevailed upon TO enter into the contract
Q. The existence OF such state of facts as will Cd
crate mitigation Of damages, may be inferred from cir
cnmsances but in such case the circumstances them.
selves must be proved and not be made the subject Of in
Now Messrs Editors apply il you please, these prin.
cipes 10 the facts OF the case made by the CORE
spondence between Mr., Clayton and the ex-minister
concerning the claim Of MIR Port, published in the
National lntellgencer Of Saturday, and you will see
think, that Mr. Port has been wfonged and that he has
just claim upon the American government for the differ
ence between the value OF the goods al the time they
forcby taken from him, rather from his vendee
and the amount awarded him by the decree OF the court
martial at Pueblo The only evidence put in by the gov.
fies OF MIR. Port was the naked opinion OF Col Chds.
and the upon which that opinion was founded
No person can mistake the immense weight OF Colonel
Chdss opinion in the progress and final termination OF
the The honor OF Col Childs take il, is above
suspicion; but neither his opinion expressed the
reasons upon which that opinion was based are legal
been ruled out. Let il be admitted that Mr. Port was
aware OF the suficency OF Mr. Domercq's claim 10 the
ownership OF the goods the subject Of the contract and
the doubtful yetihe same knowledge Of Domercq's
claim was within the reach OF the vendorthe agent Of
the goyernmentand therefore cannot be allowed TO de-
suoy me validity and LEGALITY oil MT PORTS demand The
parties TO the contract IN pdri decto far as the
knowledge OF Domefcq's claim is concerned, and the
vendor cannot be allowed take advantage OF his own
wrong Not shadow Of evidence is presented 10 show
that the agent OF the government was induced by any
fraudulent act the part OF Mr. Port to deprive Mr. Do
mercq OF the goods the subject OF the contract with Por
TO offer them at public yendue the 10Th OF October
ls41 at the barracks OF San Jose; and such evidence
does not exist, Mr. Ports claim to It's full extent ought
10 have been allowed
also apPehend that the several letters OF Mo Clayton
TO MT Poussin, announcing an unfavorabe opinion on
the subject do not conclude Mr. Port The President has
i IN hispower to order the claim OF Mr. Port to be salts
fed, Notwithstanding the termination OF Mr.. Poussn's
functions. JURIS CONS0LCUS