J. M. Drummond and P. M. Drummond against Wood

*J. M. Drummond and P. M. Drummond against Wood. If a consignment be ordered to be delivered to a particular house, if it cannot be sold at a given price, and the consignee have authority to place it with any other, in case it cannot be sold, receiving a certain specified advance, should the consignment arrive at a period when the house mentioned has become bankrupt, and the market so reduced that neither the price nor the advance specified can be obtained, the consignee will be warranted in taking an advance of a less price, if he act bona fide, of which remitting the sum he does receive, and the accountable receipt for the property he has delivered, according to his instructions, will be evidence. This was a special action on the case, to recover from tbe defendant, master of the ship Spy, the value of seventy five pipes, four hogsheads, and twelve quarter casks of Madeira, shipped on board his vessel, for the East Indies, and consigned to his care, under a letter of instructions containing the following orders : “You are empowered to dispose of these wines, either at Ceylon or Calcutta, or at both places, provided that they liquidate us the cost of invoice, independent of the freight, commission, and other charges. Which, when done, you will make use of the net proceeds, and remit the same to the order of Stephen Kingston, Esq. of Philadelphia. It is to be understood that should the markets at Ceylon or Calcutta prove dull, or overstocked with our wines, and provided that they cannot be immediately disposed of, or, during the stay of your ship in India, so as to save the first cost and charges, you will in such case hand over whatever may be unsold to Messrs. George Prager & Co., of Calcutta, who will keep them for our account until the market warrants a saving and advantageous sale.” The plaintiffs accompanied this letter with one to Prager & Co. communicating the contents of that to Wood, and containing the following postscript. Since writing the foregoing, it occurred to “ Captain Wood, that you might not think proper to make an advance of two thirds of the value of the wines, per invoice, at the same time there might be other houses that would. In such case, he has requested us to empower him to accept of an advance of two thirds from either your good house, or such other as may wish to take charge of the wines, in case he should not be able to dispose of them during the stay of the ship at Calcutta.” On her arrival there the house of Prager & Co. was found to be insolvent, and the market overstocked with Madeira wine, which had consequently fallen to a very low price. The defendant, therefore, valued himself on Messrs. Campbell & Co. who were in good credit, and received from them, an advance on the shipment of about two sevenths of its value, which was the highest advance that he could obtain. This he remitted to Mr. Kingston, taking from Campbell & Co. the following receipt: “Received, Calcutta, *9th January, 1801, from Captain Richard Wood, a consignment of, &c. which wines we promise not to sell for less than prime cost and charges, which is about 430 sica rupees, the proceeds of which, after deducting the advances We have made upon them, we shall hold subject to the order of Stephen Kingston, Esq. of Philadelphia.” At the period when this transaction took place, Madeira wine was down to 225 sica rupees the pipe, being a little more than half the invoice price, and at the time of bringing the suit, no advice of a sale having been effected had been received. A verdict was taken for the plaintiffs, by consent, subject to the opinion of the court whether they were entitled to recover, and submitted without argument. [MAJORITY — Thompson, J.] Thompson, J. delivered the opinion of the court. We think the plaintiffs are not entitled to a recovery. The instructions to the master were, to dispose of the wine immediately if he could obtain a given sum, and to remit the proceeds to Stephen Kingston, of Philadelphia; otherwise to leave it with Prager & Co. for disposal, under the same limited orders as to price and remitting. By the postscript of the letter to Prager & Co. according to the reasonable interpretation thereof, the plaintiffs gave the master some discretionary powers. On his arrival at Calcutta, he could find no market for the wine, and the house of Prager & Co. had failed. Under these circumstances we think it would have been a gross abuse in him to have delivered the wine into the hands of those bankrupts. He, therefore, as every prudent man would have done, intrusted the cargo to the care and management of another house, of established credit, receiving considerable advances upon it. No sale could be made agreeably to the plaintiffs’ instructions. The best and most advantageous disposition of it that could have been made, was that which actually was made. The proceeds of the wine, so far as they were received by the master, together with the receipt from the house in whose charge he left it, have been duly transmitted, where all the proceeds were ordered to be remitted, to Mr. Kingston. The defendant appears to have acted in good faith, and within the spirit and good sense of his instructions. Where no fraud is chargeable on an agent, his conduct ought to receive a liberal and favorable construction. The opinion of the court, therefore, is, that the defendant ought to have judgment. Judgment for the defendant.