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U.S. Supreme Court

Scholefield v. Eichelberger, 32 U.S. 7 Pet. 586 586 (1833)

Scholefield v. Eichelberger

32 U.S. (7 Pet.) 586


Action of assumpsit to recover the balance of an account current for merchandise purchased in England by order of the defendants. The defense was that the contract was made during the war, and therefore void. By the Court:

"The doctrine is not to be questioned at this day that during a state of hostility, the citizens of the hostile states are incapable of contracting with each other."

To say that this rule is without exception, would be assuming too great latitude. The question has never yet been examined whether a contract for necessaries, or even for money to enable the individual to get home, could not be enforced, and analogies familiar to the law, as well as the influence of the general rule in international law that the severities of war are to be diminished by all safe and practical means, might be appealed to in support of such an exception. But at present it may be safely affirmed that there is no recognized exception but permission of a state to its own citizens, which is also implied in any treaty stipulation to that effect entered into with a belligerent.

There is no doubt that the liability of a deceased co-partner, as well as his interest in the profits of a concern, may, by contract, be extended beyond his death; but without such a stipulation, even in the case of a co-partnership for a term of years, it is clear that death dissolves the concern.

In the circuit court, an action of assumpsit was brought by the plaintiffs in error for the recovery of �1,001 4s. 8d. sterling, with interest, asserted to be due to them by the defendants in error for merchandise sold and delivered. The declaration was in the usual form.

On the trial of the cause, the plaintiffs, to maintain the issue on their part, offered in evidence two accounts headed as follows: "Dr. Messrs. Eichelberger & Clemm, in account with Scholfield, Redfern & Co." In these accounts, the first of which commenced on 20 July, 1813, the defendants were charged, on that day, and at subsequent dates, with sums as due for goods, postages, expenses and interest, and were credited with several payments

Page 32 U. S. 587

in 1814, 1815, 1816 and 1817, the balance stated to be due to the plaintiffs on this account on 1 January, 1818, appeared to be �2,579 16s. The second account commenced January 1, 1818, and contained a credit of $8,000 under date of February 14, 1819, leaving the balance of �1,001 4s. 8d. due on 1 July, 1819, the sum for which the action was instituted. The plaintiffs proved that these accounts were delivered to the defendants for settlement sometime in 1819, and that no objections were made to them, and the defendant acknowledged the balance of the accounts to be due and promised payment of the same. It was also in evidence that the plaintiffs were British subjects and merchants, and had been such since the year 1807, and had always resided in England.

The defendant, to support the issue on his part, offered in evidence the correspondence of the late firm of Eichelberger & Clemm, and J. & W. Eichelberger, with the plaintiffs, commencing on 2 February, 1813, and terminating on 20 May, 1816. The letter of 2 February, 1813, from the defendants' late firm, received by the plaintiffs in error on 17 June, 1813, after stating to the plaintiffs that everything indicated a determination on the part of the government of the United States to continue the war then existing with England, proceeded to say:

"As such a conviction may reduce the prices of your manufactures considerably, we have prepared an order (which is hereto annexed) for some articles which are only to be purchased in the event of such a reduction. You will perceive that the investment of our money in this way is an uncertain speculation, whatever may be the reduction of prices, for we can form no opinion as to the time when they can be imported into this country, and you will therefore insure the goods, when brought, against fires. So soon as we are favored with the invoice, we will transmit a bill of exchange for the amount. This you may calculate on with certainty."

The subsequent letters of 13 April, 1813, and of 18 June, 1814, contained further orders for the purchase of

Page 32 U. S. 588

goods, and by that of 18 June, remittances were made and expectations of peace are expressed. "Should this desirable event take place," the defendants say, "we shall calculate on receiving the goods amongst the first that arrive, under full insurance against sea risk." By a letter of 22 February, 1815, the firm of Eichelberger & Clemm communicated the ratification of the treaty of peace, expressed its expectations of uninterrupted correspondence with the plaintiffs, and they also said,

"The principal object of this letter is to confirm our former orders and to assure you that immediate arrangements will be made to remit largely on account of them, with a full reliance that they have been executed on the most favorable terms and with the largest discount."

On 20 May, 1816, they communicated to the plaintiffs the losses which they had sustained and their expectations of greater losses by the goods which had been purchased for them during the war, not having been sent out in the spring of 1815, and they offered to return to the agent of the plaintiffs the packages of those goods which remain unsold. They said in that letter, "we are anxious to make you payment," and they ask that the plaintiffs may be satisfied with the interest on the balance due to them, as the same may be afterwards remitted on more advantageous terms than at that date, in consequence of the high rate of exchange. The correspondence of the plaintiffs with Eichelberger & Clemm, from 9 August, 1813, to 13 August, 1816, was also given in evidence to show the periods in which the transactions between the parties were carried on.

The invoices of the merchandises shipped by the plaintiffs to the defendants' late firm were headed in the following terms:

"Birmingham, August 20, 1814"

"Invoice of sundry merchandises bought of Scholefield, Redfern & Co., on account and risk of Messrs. Eichelberger & Clemm, of Baltimore, marked and numbered as follows and consigned to care of Messrs. Hughes & Duncan, Liverpool."

"Birmingham, March 10, 1815"

"Invoice of sundry merchandise brought by

Page 32 U. S. 589

Scholefield, Redfern & Co., on account and risk of Messrs. Eichelberger & Clemm, of Baltimore, citizens of the United States of America, marked and numbered as follows, and consigned to the care of Messrs. Hughes & Duncan, 'Liverpool.'"

The defendants also gave in evidence, the deposition of William Eichelberger, which stated

"that sometime in the spring or summer of the year 1815, the exact period deponent does not recollect, he, this deponent, associated in the hardware business with his brother, Jesse Eichelberger, who had previously conducted the same business in company with his brother-in-law, the late Mr. John Clemm; that sometime in the autumn of the said year, 1815, goods and merchandise arrived in the port of Baltimore from England, which goods and merchandise, this deponent entered at the custom house for Jesse & William Eichelberger -- the said Jesse, at the time of the arrival of the said goods, being absent from the city on an excursion to the country; that the said goods and merchandise were the first that had been received since the death of Mr. Clemm, and that the said goods and merchandise were entered in the books of Jesse & William Eichelberger, as their own goods, and were not at any time afterwards considered or disposed of as the goods of Eichelberger & Clemm. This deponent further saith that all the goods and merchandise which were received subsequently to the death of Mr. Clemm were disposed of as if all the orders in relation to them had been given by Jesse & William Eichelberger, and that no part or portion of the proceeds of said goods and merchandise ever went to the credit of Eichelberger & Clemm or to the individual estate of Mr. Clemm."

The plaintiffs also gave in evidence, by John S. Skinner, that packets sailed, as cartels, between America and England, frequently during the war; that cartels for a time sailed from Annapolis to Falmouth, in England, and that witness was appointed by the President of the United States to superintend the said cartels, and did superintend them, from December 1812, until they ceased to run from Annapolis, which happened in about a year after the time above mentioned. A multitude of letters on commercial subjects were sent by the said cartels; that all letters sent by them were examined

Page 32 U. S. 590

by the witness; that he never detained any letters on commercial subjects merely, but all letters of that description were suffered to go without interruption; that the practice of witness, as above stated was known to the Secretary of State, and approved by him.

Upon which evidence the defendant, by his counsel, prayed the court to instruct the jury that upon the whole evidence, the contract upon which this action is founded was utterly void upon principles of public policy, and that the plaintiffs were not entitled to recover. Which instruction the court accordingly gave. The plaintiffs excepted to the charge of the court, and prosecuted this writ of error.

Page 32 U. S. 592

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