Schenkhouse v. Gibbs et al.

JANUARY TERM, 1794. Schenkhouse v. Gibbs et al. Factors. — General amerage. If a factor is employed by several foreign merchants, unconnected with each other, he may remit by a general bill, payable to one, with separate drafts on him, in favor of each of the others; but notice of such a remittance must be given to all the parties. In such a case, if a partial loss occurs, it must be borne, as a general average, by all who are concerned. Case. The facts on which the present cause depended, will be found in the report of Ingraham, indorsee, v. Gibbs et at. (2 Dall. 134) ; and the note annexed to it. (Ibid. 136.) The following charge- was delivered to the jury. &) An outline of this case was annexed in a -note to the case of Ingraham v. Gibbs. 2 Dali. 134; but it was thought of some importance, to add the opinion expressed by the court on the trial. [MAJORITY — By the Court.] By the Court. — We are of opinion, that the mode of remitting by a general bill, payable to one merchant, with separate drafts in favor of each of the other merchants, who are interested in the amount of the bill, is a good and lawful execution of the trust and authority of a factor, employed by several distinct and unconnected merchants, resident abroad. No inconvenience can arise from the transaction, if all the parties are apprised of the distributive appropriation. It is essential, however, to such a remittance, that notice should be given to the jjarties. In the present case, there is no proof of express notice to the plaintiff: but this may be supplied by facts, which raise a fair presumption of the plaintiff’s knowledge on the subject : and his delay in protesting and returning the bill, together with the draft on Portener, sent directly by the defendants to him, are facts of that description. It only remains to observe, that Portener, tbe general trustee, could give no preference to any claimant on the fund; and that in case of a partial loss, it must have been borne, as a general average, by all the concerned. Verdict for the defendants.