UNITED STATES SUPREME COURT DECISIONS ON-LINE

The master of a ship, who with the other members of a mercantile house were owners of the vessel which he commanded, with the approbation of the firm, signed a bill of lading to deliver certain articles of merchandise, the property of the shipper, at the port of destination of the vessel, "freight to be paid for the goods as per agreement endorsed." The agreement endorsed was that the owners of the ship should have, as the freight of the ship, one-half of the net profits on the proceeds of the goods, which were to be invested in a return cargo to be consigned to and sold by the shipper. The proceeds of the outward cargo were received by the shipper, part in goods and part in money, a portion of the cargo having been left unsold by the vessel where they were delivered. The transaction was made the subject of an account current by the owners of the vessel with the shipper of the goods, and a large balance was claimed to be due to them on the said account. The shipment was made in May, 1810, and in May, 1829, a suit was instituted for the recovery of the balance stated to be due on an account current. The defendants, the executors of the shipper, pleaded the statute of limitations of the State of Maine. The defendants replied that the accounts and promises arose "from such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants." The plaintiffs admitted they had no other cause of action than such as arose from the bill of lading, and the contract endorsed thereon. Held that the bill of lading and the contract were not sufficient to maintain the issue joined on the part of the plaintiffs in respect to the replication of merchants' accounts.

The statute of limitations of Maine is copied from the 21st of James I, and its words are

"All actions of account and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants &c., shall be commenced."

It would seem to be the necessary construction of these words that the action on the case to which the exception applies must be founded on an account. The language of the act conveys the same meaning as if it had been "all actions of account, and all actions on the case other than such as are founded on such accounts as concern the trade of merchandise," &c. The foundation of the action must be an account, not a contract.

From the association of actions on the case, a remedy given by the law for almost every claim for money, and for the redress of every breach of contract not under seal, with actions of account, which lie only in a few special cases, it may reasonably be conceived that the legislature had in contemplation to except those articles only for which account would lie. The words certainly imply that the action should be founded on an account. The account must be one which concerns the trade of merchandise.

The case presented by the exception is not every transaction between merchant and merchant; not every account which might exist between them; but it must concern the trade of merchandise. It is not an exemption from the act attached to the merchant merely as a personal privilege, but an exemption which is conferred on the business as well as on the persons between whom that business is carried on. The accounts must concern the trade of merchandise, clubjuris

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and the trade must be not an ordinary traffic between a merchant and any ordinary customer, but between merchant and merchant.

The trade of merchandise which can present an account protected by the exception must be not only between merchant and merchant, but between the plaintiff and defendant. The account -- the business of merchandise which produces it -- must be between them.

A charter party, a contract by which the owner lets his vessel to another for freight, does not change its character because the parties happen to be merchants. It is still a special contract whereby a compensation is stipulated for a service to be performed, and not an "account concerning the trade of merchandise." It is no more "an account," and no more connected with "the trade of merchandise" than a bill of exchange or contract for the rent of a house or hire of a carriage or other single transaction which might take place between individuals who happen to be merchants. An entry of it in the books of either could not change its nature and convert it from an insulated transaction between individuals into an account concerning the trade of merchandise between merchant and merchant. They must depend on the nature and character of the transaction, not on the books in which either party may choose to enter a memorandum or statement of it.

The English cases certainly do not oppose the construction given by the court to the words of the statute; the American cases, as far as they go, are in favor of it.

On a commercial question especially, or one deeply interesting to merchants and to merchants only, the settled law of New York is entitled to great respect.

This action was originally instituted in March, 1829, by the plaintiffs in error, who survived Andrew M. Spring, their co-partner, in the Court of Common Pleas of the County of York, in the State of Maine, by process of attachment, and was removed to the circuit court of the United States upon the petition of the defendants.

The action was assumpsit, and in the declaration the first count was for the balance of an account current, which account was annexed to the writ. The second count was for money had and received.

The defendants pleaded the general issue, which was joined, and also the statute of limitations. The plaintiffs, to their pleas of the statute, replied that "the accounts and promises arose from such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants," and issue was taken on the replication.

The declaration described the plaintiffs as co-partners on 1 July, 1821, "transacting business as merchants in the name of Seth Spring and Company." The defendants' intestate was described as "William Gray late of Boston, deceased."

The account annexed to the writ was as follows: clubjuris

Page 31 U. S. 153

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clubjuris

Page 31 U. S. 154

This account grew out of a special contract between the parties, and the evidence and instructions of the court to the jury were set forth in a bill of exceptions which stated that the plaintiffs, to maintain the issues on their part, offered in evidence and read to the jury:

A bill of lading of the outward cargo of the Morning Star, signed by Andrew M. Spring, with the amount of contract on the back of it, signed by William Gray and Seth Spring and Sons. The bill of lading was in the usual form, and stipulated that the cargo should be delivered at Algiers, to Andrew M. Spring, the freight to be paid as per agreement endorsed on the same. The agreement was as follows:

"The proceeds of the within cargo, amounting to $35,202.83, as per invoice, costs and charges, is to be invested in Algiers or some other port (after deducting all charges, consignee's commission included, except freight and premium of insurance within, of which two last mentioned charges are to be made on the goods), and returned in the said barque Morning Star to Boston, when Seth Spring and Sons (owners of said barque) are to recover one-half of the net profits thereon in lieu of freight and primage, the voyage round. The consignee's commissions to be two and a half percent on the sales of the within cargo, and no commissions to be charged in Boston except what is paid an auctioneer."

"SETH SPRING AND SONS"

"WILLIAM GRAY"

"$35,202.83"

Also letters of instructions addressed by William Gray to Andrew M. Spring relative to the voyage of the Morning Star, and also the correspondence on the accounts of Andrew M. Spring, and of the consignees and others relative to the transaction. The plaintiffs' counsel having closed their evidence, they were inquired of by the court whether they had any other cause of action than such as arose from the bill of lading of the outward cargo of the barque Morning Star, and the contract endorsed thereon, answered that they had not.

And thereupon the defendants' counsel moved the court to instruct the jury that inasmuch as the plaintiffs had admitted that their whole cause of action arose from said bill of lading clubjuris

Page 31 U. S. 155

and contract endorsed thereon, the said bill of lading and contract, with the other papers, documents, and testimony aforesaid, were not sufficient evidence in point of law to maintain the issue joined on the part of the plaintiffs in respect to their replication of merchants' accounts.

The plaintiffs' counsel objected to such instructions and prayed the court to instruct the jury that the evidence introduced was sufficient to prove and did prove the issue last aforesaid on the part of the plaintiffs.

But the court instructed the jury that inasmuch as the plaintiffs had admitted that their whole cause of action arose from said last mentioned bill of lading, and contract endorsed thereon, the said bill of lading and contract, with the other papers, documents, and testimony aforesaid, were not sufficient evidence in point of law to maintain the issue last aforesaid on the part of the plaintiffs.

And thereupon the jury returned their verdict for the defendants on this issue, and upon the general issue they found no verdict.

The court gave a judgment for the defendants, and the plaintiffs prosecuted this writ of error. clubjuris

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