ERROR to the Circuit Court for the district of Rhode Island,
in an action of assumpsit to recover from the Defendant's Perrott and Lee, the amount of certain bills of exchange put into their hands, to collect, by the Plaintiff Taber and his deceased partner, Gardner.
At the trial below several exceptions were taken, in which the following facts appeared.
The Plaintiff produced a witness, John L. Boss, who being duly admitted and sworn testified, that Messrs. Taber and Gardner, merchants of Rhode Island, were holders and owners of French government bills to a large amount, which were by them indorsed in blank, and given to their agent, the said John L. Boss to take to France for collection. That he, Boss, had no interest in the bills and received them as agent for the Plaintiffs, and this was known to Perrott and Lee. That he carried them to France in 1802, in a vessel of the Plaintiffs, with a cargo consigned to the Defendants, Perrott and Lee, of Bourdeaux in which cargo Boss had an interest. That he delivered the bills to Perrott and Lee to negotiate and receive the amount. That Boss went to Paris in October, 1802, and while there received a letter on the 26th October, from Perrott and Lee informing him that Hotel, Thomas & Co. of Paris, were the house to whom the bills were sent and introducing him to that house, and they wrote a letter to Hotel, Thomas & Co. directing them, when the bills were paid, to place the money to the credit of Perrott and Bineau, a banking house at Bourdeaux, which Perrott is one of the Defendants. On the 12th of January, 1803, Boss called on Hotel, Thomas & Co. and was informed that the bills had been paid by the French government on the 7th of January preceding, and Boss saw the proceeds of the bills credited on the books of Hotel, Thomas & Co. to the said Perrott and Bineau, according to the directions of Perrott and Lee. That Boss on the 14th January, advised the Defendants that the bills were paid, and directed the proceeds to be applied to the credit of the account of Taber, Gardner and Boss with them. On the 29th of January, at Paris, Boss saw bills of exchange drawn by Perrott and Bineau on Hotel, Thomas & Co. and accepted by them at 30 or 40 days sight, which were acknowledged by the Defendant, Perrott, to have been drawn for the said proceeds. That the said bills so drawn and accepted were in the hands of one Charles Bodin, but whether they have been further negotiated or not, or paid or not, Boss could not tell. That Boss returned to Bourdeaux on the 26th of February, and left Bourdeaux about the 6th of April, 1803. That until the day before he left Bourdeaux he had no intimation from the Defendants that they would not credit the amount of the said bills to the account of Taber, Gardner and Boss. That the Defendants refused to give such credit.
Perrott and Lee, who provided the return cargo, brought Taber, Gardner and Boss largely in their debt in account current; and Boss, on the 6th of April, 1803, signed the account, stating that when the monies were received on the bills from Hotel, Thomas & Co. the amount should be passed to the credit of Taber, Gardner and Boss. Perrott and Lee afterwards received the whole balance of the said account from Taber, Gardner and Boss, not having credited the proceeds of the said bills; and the present suit is brought by Taber, surviving partner of Taber and Gardner, the original holders of the bills, to recover their amount.
The principal exception was to the charge of the judge who directed the jury to find for the the Defendants, on the ground that the witness, Boss, had not been made a party Plaintiff in the suit.
The case was argued by P. B. KEY, for the Plaintiff in error, and by HUNTER, for the Defendants.
MARSHALL, Ch. J. delivered the opinion of the Court as follows:
This suit was brought by the Plaintiffs in error, in the Circuit Court of the United States, for the district of Rhode Island, to recover from the Defendants the amount of certain bills drawn by general Le Clerk on the government of France.
The declaration contains several counts, some special, stating agreements between the parties for the payment of the bills; others general, among which is a count for money had and received by the Defendants, to the use of the Plaintiffs.