Year: 1863

| Charles n. spencer


N. F. Bennett et ais.


Opinion of Chief Justice ALLEN


The complainant alleges that the respondents are
owners of the brig Mary EeH and cargo Of lumber,
! part of which is on board, and the balance on the
wharf in Honolulu, adjacent to said brig; and that
Thomas Spencer, one of the respondents and owners
aforesaid, residing at Hilo, duly authorized to
make sale of said cargo and that he did enter into
contract with him for the delivery of the same about the
lst of Feb, when it should arrive at Hio at twenty
dollars per thousand feet for boards and five dollars
per thousand for shingles, of which there q men,
orandum in writing He further alleges that the brig
arrived Hio, and that he ready on his part to
complete the contract, but that the of the brig
who is also of the respondents refused to land the
cargo, and proceeded with the same to Honolulu.


The respondents deny the authority of said Spencer
to make the contract with the complainant for the sale
of the lumber declare that the agent of the
sci, Mr. j. s. Walker, and respondent in this suit
ordered certain articles such four hams potatoes
&C., Sc, designed especially for the whaling feet at
! HilO together with two hundred thousand shingles,
and the balance of room in the vessel to be occupied
with assorted lumber such last cargo, which they
thought at the tme would be but small portion Of
the cargo They further allege that the MASTER appre
hensve that the vessel would not arrive in time for ef


ecng saes the feet made larger purchases of lum
Der than twas originally intended. They further say
that it arranged by the that the vessel
her return should first visit Ho in order to supply


the delendent Spencer, such portions of said edible
go as he might find demand for by the whaling feet,
and such portions of the lumber he might require
in the legitimate course of his business.


The first question which arises is, had Spencer au
thority to make sale of the cargo of the Mary Ellen
and was he under any limitation Of power so to do !:
1t is admitted that the cargo ordered for the n lilo
market and that the same was to be consigned to him.
This the agreement at the time the vessel sailed
| from Honolulu. So far then the owners con-
cerned they were bound by his contract if his author
ity was without limitation. Spencer swears that the
lumber the material portion of the cargo which he
wanted at Ho, and he was take the whole of it if
he Pleased the he had right to take any other
article. He tesies that he had unlimited control of
the sale of the cargo at Ho, by agreement with the
Agent of the brig at Honolulu at the time the memo
randum of the cargo made up But it Is asserted
that the brig has brought lumber than ex-
pected and, therefore, Spencer not authorized TO
make sale for the whole amount brought. The
pondent eses that, if all the articles ordered had
been put board she would have brought about fifty
thousand feet whereas she brought sixty thou
sand feet There would be force in the reasoning,
far at least as the agent concerned that ten thou
sand feet of boards were ordered only, whether would
be competent for him to make sale of the eirgo-shoud
there be hundred thousand feet and he would be
responsible for any violation of his duty. 1t would be


different state of facts from what any of the parties
anticipated. 1t appears by the evidence that Mr. Spen
Gel sells lumber commission, and had on hand on
the LIST January, hundred and two thousand feet
Now, the answer alone of the defendant, was this
sale in the legitimate of his business, and espe-
cally when the course of business of importing
chants is regarded not his duty make sale in
bulk if he obtained the tul market prce-rather than
to have enhanced his commission, and prolonged the
adjustment of the adventure by retailing it? it
that it the exercise of a sound discretion and
clearly within the powers and duties of his agency.
When there is added to this, the position and unequiv
ocal testimony of Spencer, that he was by express
agreement to have full power and control the
6iQnment. 3 beVOn1
| versey.


1t is in testimony by Mr.. Raplee that he was present
when the memorandum for the cargo was agreed upon
and the understanding that the brig to touch
first at Ho, when she came back for the purpose of
dschargng whatever part of the cargo Capt Spencer
might dispose of. require-I cannot say that they
had any idea that he would sell the whole cargo in bulk,
but my impression is that they had no idea that he
would sell it in bulk. do not think there was any
prohibition to Spencer from selling the lumber.


1t is further contended that the sale fraudulent;
if this proved the sale is void; but, fraud be
proved, surmsed The allegation is not sufficient.
1t is contended, frst that Spencer had right, so
long before the arrival of the vessel to make sale and
especially to his brother. The vessel had been alb
sent from Honolulu from the 9th January, the 18th
February, twenty-f days, and she could reasonably
be expected in forty fifty days 1t appeared in evil
dence, that the cargo prior to this sold Honolulu for
$3.50 per thousand less expenses, and there
evidence that Spencer had received intelligence that
lumber would probably rise, and in point of fact there
was no advance in Honolulu till February 4th, the
very day this contract was completed in Hio. The
letter of Mr.. Walker informing Capt Spencer that um-
Der rising in the market was dated the 4th at Hon
ouu,-of course Spencer could not have had this in
telligence. But as the Agent at Honolulu had made
sale of the lumber the 31st of January to arrive,
the owners cannot, with good grace complain of their
Agent at Hlo, for selling on the 4th February, the
cargo to arrive. The price which the Agent of the
brig sold the cargo for Honolulu S22 per thou
sand and S4,75 per thousand for shingles, on four
months credit While Spencer, the Agent at Hilo SOLD
the boards for $50 per thousand and 5 per thousand
for shingles, 60, 80, 120, which is average of
months, and the additional expense of delivering the
lumber at high water mark, butt this expense not
accurately proved. This difference is not sufficient
brand the with fraud-so far price, time
of credit and time of sale in advance of the arrival Of
the cargo applies The same objections exist against
the sale at Honolulu and Ho but, there evidence
of fraud in either case bat. much in the the
other.


1t is further contended that Chas N. Spencer being
q brother of the Agent, was evidence Of fraud
in the sae-if there other evidence of frsudu
lent character, this relationship would have weight.
We look with great caution upon contracts made with
relations and if there badges of fraud in the cir
eumstances Of the negotiation, it would be vod and it
is saij that he has property, and therefore, not
worthy of credit He is represented to be young
of industrious habits and worthy of confidence and that
the merchants would give him credit to the amount Of
this purchase, if it apparent, that sale could be
ndue VI SOVuo PurCnaSod NaPtaiu DpcuOef says
he has not had a settlement with his brother, who has
been in his employment some eight years. but, he be-
lieves that he is owing him considerable sum Of
money, and that be has unbounded credit with him.
Although. do not regard that there is the slightest
evidence Of fraud in this transaction, still when the
kindred of Agent for the sale Of property pro-
posing purchase, is the safer ami better way for
the Agent to consult the principal especially and pro-
his approval. in all cases, when it seasonaby
be done 1t is in better taste and better judgment
Frau NOT 10
and credit valuable to all men, and none more
than to merchants and courts will be very considerste
and cautious in sustaing charges of this character
There many other circumstances commented upon,