
11 U.S. 308 (1813)
7 Cranch 308
CLARK'S EXECUTORS
v.
CARRINGTON.
Supreme Court of United States.
February 6, 1813.
February 13, 1813.
Absent ... . . JOHNSON, J. and TODD, J.
*313 C. LEE, for Plaintiffs in error.
STOCKTON, contra.
*320 MARSHALL, Ch. J. delivered the opinion of the Court as follows:
This cause comes on now to be heard,
1st. On exceptions to the opinion of the Circuit Court permitting certain exhibits produced by the Defendants in error, to go to the jury.
2d. On exceptions to the charge delivered by the Judge, to the jury.
*321 The first exhibit, to which the Plaintiffs in error objected, was a letter written by their testator to George Smith & Co. of Hamburg, which respects the transaction on which the present suit is founded. This letter is said to be irrelevant.
The second is a letter written by Greene & Barker, [whose interest, the testator of the Plaintiffs held as assignee] to George Smith & Co. making themselves responsible for the contract of Carrington.
This letter is said to be inadmissible, because it is between other parties, and relates to a contract between Carrington and George Smith & Co.
The third is a judgment obtained by George Smith & Co. against Edward Carrington, the Defendant in error, on his transactions as a co-partner with Greene & Barker, which were guarantied by them. The objection to this exhibit, also is, that it is the record of proceedings in a suit between other parties.
The Court is unanimous and clear in the opinion, that neither of these exceptions is sustained.
The letter of John J. Clarke to George Smith & Co. is admissible, because it is part of the correspondence relative to the transactions out of which the present suit has grown, and because it affords a strong implication that the writer was acquainted with the obligation of Greene & Barker, whose interest he claims, to comply with the engagements of Carrington, their co-partner and supercargo. It cannot, therefore, be deemed irrelevant.
The letter of Greene & Barker to George Smith & Co. is admissible, because it tends to show the obligation of Greene & Barker, (whose interest in the Abigail and her cargo, is claimed by John Innes Clarke,) to perform the engagements of Carrington, and is a proper link in that chain of testimony which was adduced to prove that those engagements passed, with the interest of Greene & Barker in the Abigail and her cargo, to John Innes Clarke.
*322 The judgment obtained by George Smith & Co. was admissible, because it was founded on the contracts of Carrington with George Smith & Co. for which Greene & Barker were liable. It was a material document to ascertain the amount to which George Smith & Co. were entitled, as against Carrington, and was therefore a part of the testimony which would be required to show for how much Greene & Barker were responsible when they assigned to John Innes Clarke. It was certainly admissible, for these purposes, because Greene & Barker were in truth co-partners with Carrington, and because, if they were not, it is a case of warranty and indemnity; and in such case, a judgment against the person to be indemnified, if fairly obtained, especially if obtained on notice to the warrantor, is admissible in a suit against him on his contract of indemnity. Whether it was admissible against John Innes Clarke, depends on the degree of his liability for the money for which that judgment was rendered. If the obligation to indemnify passed to him with the interest of Greene & Barker, either on his express undertaking contained in his letter of March 1801, or in consequence of any equitable lien on the vessel and cargo or on the money produced by them, which attached, while the property of Greene & Barker, and was not affected by the assignment, then these proceedings were admissible in a suit against him.
If no such liability existed, then the action could not be sustained, and the judgment would be reversed on the charge of the judge. This point therefore will be considered in that part of the case.
In his charge, after summing up the testimony offered by both parties, the judge proceeds to say, "I conceive that Mr. Clarke's letter bearing date March 16th, 1801, at Providence, and directed to Mr. Carrington at Havanna, and received by him the 22d of April, 1801, taken in connexion with the other evidence in the case, ought to be considered as a letter of guaranty, and binding Mr Clarke to pay 5-9th parts of the debt due to George Smith & Co. as ascertained by the judgment in their favor against Mr. Carrington. I am also of opinion, that Mr. Clarke having received of Mr. Carrington, a large sum of money under and by virtue of the assignment from Greene & Barker, of their interest *323 in the ship Abigail and cargo, was bound under the circumstances of this case, as made out and established by the evidence, to refund the same, or so much thereof as would amount to 5-9th parts of the debt due to George Smith & Co. What sum Mr. Clarke received, is a question of fact, proper for you to decide."
The declaration in this cause contains five general counts, and three special counts founded on the letter of March 16th, 1801, which the judge considered as a letter of guaranty binding John Innes Clarke to pay 5-9th parts of the debt due to George Smith & Co.
The first part of the charge is supposed, by a part of the Court, to apply to the special counts, and to determine the right of the Plaintiff below to recover under them; the latter part of the charge, to the general counts, and to determine his right to recover under them.
If the letter of the 16th of March, 1801, bound John Innes Clarke to perform the contract of Greene & Barker, then he was liable to the extent of Greene and Barker's liability, and was bound to pay whatever they were bound to pay, although it might exceed the proceeds of the Abigail and cargo.
If that letter did not support the special counts, if with the other circumstances of the case it did not amount to such a contract as was stated in the declaration, then Carrington could only recover on his general counts, and could obtain a judgment for no more than had been received by Clarke.
Others of the Court are of opinion, that the charge does not import that, in any state of the accounts, Clarke was bound to pay more than he had received.
A decision of this point is rendered unnecessary by the opinion of the Court on the letter of the 16th of March, 1801.
The important part of that letter is in these words. "With respect to the ship, notwithstanding I have a "bill of sale from Greene & Barker of two thirds, I *324 "shall view you, (if you return here with her,) as the "owner of such proportion as agreed upon between "you and them, and I give you my word that you shall "receive from me any aid and support in settling the "business to mutual satisfaction, that is in my power. "Mr. John Corlis, who has undertaken to conduct the "business for Mr. John C. Nightingale writes you by "this opportunity, and will assure you in his behalf, of "one sixth of one third from him, that is to say, to make "you an owner in the whole ship Abigail, and appurtenances "of one complete sixth, and the same proportion "in the cargo; and Greene & Barker's contract with "you, shall in every respect be fully complied with, the "same as it would have been done with them, had they "continued owners."
What was Greene & Barker's contract with Carrington?
It is observable, that neither in this letter, nor in any other part of the proceedings, is there any evidence that Greene & Barker had made with Carrington more than one contract respecting this voyage.
A part of this contract, as is apparent from the letter of Mr. Clarke, entitled Carrington to one sixth part of the Abigail and of the cargo to be taken on board at Hamburg. The letter of the 12th of July, 1800, addressed by Greene & Barker to George Smith & Co. states Carrington to be a part owner of the vessel which was sent to Hamburg on freight, wishes them to render Carrington the necessary aid he may require, and adds, "we shall consider ourselves responsible for all contracts Mr. Carrington may make in the business of this ship, and anticipate the pleasure of your being well satisfied with his strict fulfilment of them."
It seems a necessary inference from the condition and object of the parties, that this letter was written in pursuance of and conformity with, the contract between Greene & Barker and Carrington, and that their responsibility, "for all contracts Mr. Carrington might make in the business of the ship," was as much a part of their engagement with him, as the agreement that he should be interested one sixth in the vessel and cargo.
*325 This undertaking was known to Mr. Clarke. His letter of the 30th of June, 1800, introducing Carrington to George Smith & Co. recommends Greene & Barker and Nightingale as the persons on whom G. Smith & Co. were to rely for the fulfilment of the engagements made by Carrington. "I have ever found these gentlemen," says he, "persons of strict integrity, and I doubt not will punctually fulfil any engagements they may enter into with you." Clarke knew then, that Greene & Barker had bound themselves to be responsible for the contracts of Carrington with George Smith & Co. and alluded to this residue of their contract with Carrington, when, after saying that he should consider Carrington as the owner of such proportion of the ship as was agreed on between him and them and that Mr. Corlis, who represented Nightingale, would do the same, he adds "and Greene & Barker's contract with you shall in every respect be complied with."
The subsequent conduct of Clarke certainly proves that he never understood himself to be entitled to more, by the assignment of the Abigail and her cargo, than would remain after discharging the contracts entered into by Carrington.
The record abounds with proofs of this position, which have been much pressed at the bar, of which the Court will select only one. It is the letter from Carrington to Clarke, dated Havanna, April 22d, 1801, in which he acknowledges the receipt of Clarkes letter of the 16th of March of the same year. He states the lien upon the ship and cargo, and adds, "but I presume, and doubt not, Messrs. Greene & Barker have acquainted you with the exact situation of them, and have only disposed to you that part of the ship and cargo that may remain after the bottomry bond is settled and discharged."
At this information Mr. Clarke expresses no surprise, nor does he manifest any dissatisfaction at the conclusion Carrington had drawn respecting the terms on which he had succeeded to the rights of Greene & Barker. This is considered as further explaining his meaning in usuing the terms, "and Greene & Barker's contract with you shall in every respect be complied with."
*326 Upon these grounds, it is the opinion of the majority of the Court, that the letter of the 16th of March, 1801, contains a contract, binding John Innes Clarke to perform the whole contract of Greene & Barker with Carrington, a part of which was to pay five ninth parts of the debt contracted on account of the Abigail and her cargo, with George Smith & Co; consequently the Plaintiffs in error were responsible to Carrington as far as Greene & Barker were responsible.
It has been contended, for the Plaintiffs in error, that a considerable part of the debt to George Smith & Co. (the premium of insurance on a return voyage to Hamburg,) was incurred in consequence of the gross negligence of Carrington in not countermanding the order for insurance as soon as he determined to change the voyage. For this sum it is contended, Greene & Barker could not have been liable to Carrington, and consequently it cannot be recovered from John Innes Clarke.
One of the judges is of opinion, that the question of negligence is, in this case, a point of law, Carrington having been a co-partner with Greene & Barker, and therefore proper for the decision of the Court; others think that the judge has left that question with the jury.
In summing up the evidence, the judge says, "the Defendants say, that for his, (Carrington's) neglect in not giving such timely notice (of the change of the voyage.) he ought himself to pay the whole of the premium. Of this you will judge."
This explicit declaration, is considered as not being overruled by the concluding part of the charge.
If the fact of negligence was left to the jury, they have decided it in the negative, and the question whether a partner would in such a case be responsible to his co-partners for negligence in failing to countermand an order for insurance, does not arise in the cause.
On that part of the charge which states John Innes Clarke to be responsible to Carrington to the amount of the money he had received, there is no difference of *327 opinion in the Court. It is however, unnecessary to state the reasoning on which this opinion is founded, since the construction given to the letter of the 16th of March, 1801, decides the cause.
It is the opinion of the Court, that there is no error, and that the judgment be affirmed.
