Polynesian., 1861-02-23
No. 43.

able to furnish such supplies for the use of the vessels
instead Of continuing to purchase them here from other
parties. 1t does not appear that any objection to this
mode Of proceeding made at the time by the other
part-owners and. accordingly the subsequent
Of disbursements show that large part Of the supplies
for the vessels furnished by Coady, or Coady
Go. They were in the habit Of watching the market,
and buying up from time to time quantities Of such
tces as we're likely to be required in re6tng the
sells And such mode Of proceeding s said to be usu-
al at those ports in the United States from whence the
whaling business is extensively prosecuted.
In attempting then, to apply to this part Of the case
the legal principles which generally applicable as
between principal and agent to ships husbands,
must have regard to the particular circumstances Of
the case and the mode Of dealing between the parties
Had been clearly understood that Coady, or Coady
Co., were merely to act agents to purchase from
others the various supplies for the Ships the
sity for supplies arose, thus establishing between them
and the other parowners the relation Of principal and
agent pure and simple then they must have been sub
ect to the we'll established rules that person cannot
act as agent in buying for another goods belonging to
himself and that no agent will be permitted to take
beyond reasonable compensation (or that agreed
upon for his services or to hold any profits incidentally
obtained IN the execution Of his duty even if be sane
toned by usage (Story on Agency, Sections g. 207;
Massey Us. Davies, Vesey, Jr., page 81 Church
rs. Mar. Ins. Co., Mason, S4l.)
Counsel for plaintiffs admit the soundness Of these
rules and appears by the testimony and the accounts
that IN those instances where they purchased from third
parties supplies required by any Of the vessels, they
have charged no profit to themselves beyond the stpu
lated commission that when in any such instance they
obtained discount, they have allowed the advantage
OF that discount to for the common interest and
that where they furnished articles from their own stock
on hand, they have charged than reasonable
price, or the lowest market value Of such articles at
| the time.
Counsel for defendant have cited several cases refer
red to in the notes to Fox Mackreth, Leading
in Equity, 2OO as sustaining the principles for which
| they contend, but which, upon examination and for
reasons already stated do not deem applicable to
this part of the In the case of East India Compa
ny rs Henchman, Lord Chancellor THURLow held that
when factor instead of charging factorage upon pur-
ehases made for his employers buys up goods which
ne ought to furnish factor and deals with his coz
stituents as merchant and charges mercantile profits,
ne may be compelled in equity to account In the
OF Bently Craven, where Of several partners
was employed to purchase goods for the firm, and he
unknown to his co-partners, purchased goods Of his
own at the market price, and made considerable profit
thereby, it was held by Sir j. RoMILLY, NJ. r., that
the transaction could be sustained and that he was
accountable to the firm for the profit thus made SO,
also, in the case of Massey Davies Vesy Jr 3I7
an agent for collery, who it stipulated was to
have no emolument beyond his salary decreed by
Sir K PEPPER ARDEN, NJ. R., to account for the profits
made by selling to his principal timber belonging to
himself and another person, with whom he had clan
destlney entered into partnership, under the Of
| that person. The distinction which draw between
those cses and that branch of the present which
We are now discussing may, at first sight, seem to be
nice one, but think it is clear In the first place.
in all those the relation between the parties was
an unmixed, well defined relation 10 be governed by
certain well understood principles and, again, there
apparent in those cases conduct the part Of the
defendants contrary to their duty and to what was
pected OF them by the other parties and that too in
clandestine way Here, the Quitting Of the vessels
by Coady and Coady Co, whether with supplies pur-
chased from third parties, with articles furnished
from their stock in trade, was carried on openly
and fary so that if either Of the other part-owners
had any objections to make, he had the opportunity
Ii does not appear that any express objection was made
by the defendant when the vessels were being fitted
out nor when the several accounts Of disbursements
were furnished to him. according TO the usage OF the
business and that fact, Of ITSELF must now be held
conclusive against him this part Of the case, as
amounting in law to a waiver Of all objections.
| We must now advG:t to the other branch of the
case, which relates more particularly to the agency
of Coady. and Coady Ca, about the disposition of
the products of the whaling voyages. 1t appears
| that they made certain arrangements, their own
account, with Messrs. Swift & Allen, of New Bed
ford in pursuance of which the plaintiffs were to
forward 10 Swift Allen for sale and returns, what
ever oil and bone belonging to the catchngs of the
several vessels should be sent to the United States
market. The plaintiffs also negotiated for and OBJ
tanned from Swift Allen, credit to large amount,
against which they were to be at liberty to draw,
certain conditions. 1t appears that the plaintiffs
avaied themselves of this credit paying interest for
advances at the rate of six per cent per annum but
particular shipment. For advances made here by
the plaintiffs. account of disbursements in the
fitting out of the ships, they have charged interest
against the several partowners, at the legal in
this kingdom, viz, twelve per cent. per snnum. 1t
is claimed behalf of the defendant that the credit
with Swift Allen obtained by the plaintiffs,
through express agreement that the products of
the whaling voyages, which was the common prop
erty, should pass through Swift & Aliens hands,
and that, therefore, the defendant and other part
owners entitled to share in any benefit or profit
which may have accrued to the plaintiffs, by reason
OF that arrangement. But to this it is answered,
think conclusvely that the facts of the show
that the arrangement for credit with Swift Allen
made by the plaintiffs, was made by them for the
of their business generally, solely their own
account and responsibility, and not as the agents of
the other part-owners, who never authorized the
plaintiffs to make any such arrangement on their
behaf-never were responsible for the repayment
of any money obtained, and cannot therefore
claim to reap any advantage therefrom.
1t is also claimed behalf Of the defendant that the
plaintiffs have right to charge interest advances
made by them in fitting out the vessels, without
having first made a demand for contribution. But
it appears in testimony. that th plaintiffs furnished
the accounts Of disbursements, from time to time
the defendant and other part-owners, is usual in
the business, and this must be regarded notice to
them, and equivalent to an express demand, render
ing them liable for interest from the time the ac-
counts furnished. It is still further claimed
on behalf of the defendant that the plaintiffs cannot
charge interest those advances, after the products
Of the whaling, large portion of which was the
property of the defendan- and the other owners,
came to the plaintiff hands, because they might
have raised funds, by drawing bills against that
property, Swift & Allen, who had agreed to
accept But in the absence Of any proof Of special
agreement between the parties, this point and in
view of the fact that the credit with Swift Allen
obtained by the plaintiffs for their own use. and
their sole responsibility, think it was optional
with them whether to draw thus not. It is testi
ed hv Mr. Ia HAITI fhauu nat
any particular shipment; that account of adyices
received from Swift & Allen, Coady Co. could not
have drawn against any shipment made in the fall of
1858, and that whalers bills were that season at