Feb. 1804. V. Codwife &c. John Hacker. contrary to his and invest the freight, in arti cles swhich his owners take to, this, if accom panied with a declaration him, but for will be a waiv to fue for dam count of dif conftrued in The plaintiffs were owners of a fhip called the Young ALBANY, Eagle, of which they had given the command to the defendant, on a voyage from New-York to Martinique, from thence to New Orleans, and in cafe no freight should offer at the latter place for New-York, then to proceed to the Havanna, orders, by purand from that port, home. In Martinique, the defendant was fuing voyages addreffed to Mefsrs. Ranci and Co. with injunctions to con- instructions, fult him in what manner to best promote the intereft of the proceeds of his voyage, and to let their opinions have due weight. The letter of inftructions, in addition to this, contained the follow ing paffages." It is our defire that you strictly adhere to the following inftructions, which are to be confidered as that they find ❝ binding on you, and not to be deviated from. From Mar- no fault with "tinique you are to proceed with all poffible dispatch to not writing, "New Orleans, and there value yourself on Mr. James Car- er of any right "rick, to whom the ship is addressed there, and to whom ages, on acyou have letters, and then use your intereft and addrefs to obedience. "procure a full freight home to New-York. Should there The acts of a principal, are unfortunately be many veffels there, loading for New- to be liberally “York, you must then try whether, offering to take freight favor of an adoption of the << on more reasonable and lower terms than the other veffels, acts of an a "would not be the means of procuring you a full freight gent. "in preference to them. If so, it is our orders that you take "freight at under rate, in preference to returning home in "ballaft. Although the ship is configned at New-Orleans, "you are nevertheless to advise in all matters relative to our "intereft, with the confignee. You must pay particular at"tention to fee whether our confignee attends to our inter"eft in his exertions to get the ship a freight, and if not, "you will of course see the neceffity of your redoubling your "exertions to procure freight, and not to place your depend"ence on the confignee, you will therefore pay strict atten"tion to the foregoing requeft, as our chief dependence is "placed on your exertions. Further, as a laft refort, in cafe "you can procure no freight for the United States, you may "then take freight for the Havanna, and from thence to "New-York, provided you have one that offers, that will "answer. You will confult in the Havanna, with Santa "Maria Cuefta and Co. Finally, if after obtaining the best Feb. 1804. Codwift &c. V. ALBANY, information, whether freight can be procured or not, and "giving the fhip a fair chance, by waiting two or three "weeks, if none offers, you'll then return back to this port, John Hacker. with all poffible dispatch. It is our orders that you take "freight at under rate, in preference to returning home in ❝ballaft, or if a full freight was to offer for Philadelphia, ❝or Boston, or any port in the United States, you might "take it." The veffel failed from New-York, arrived at Martinique, and departing from thence, reached New-Orleans fafely on the 2d of October, 1799. Whether any freight then offered for New-York, was not fhewn. But the defendant procured one for the Havanna, to the amount of 5225 dollars, with which he failed, in 30 days, after his arrival. On the paffage, and within fix hours fail of his port, the defendant wrote by a brig he met, a letter to the plaintiffs, faying, that if he could get permission, he should go from the Havanna to Campeachy. Having fafely reached the Havanna, the defendant received payment of his freight, partly in cafh, and partly in a bill on R. Rolf of New-Orleans. With the cath he purchafed fugar, which he shipped to his owners in a veffel, named the Ohio, and having delivered his cargo, weighed anchor on the 29th of December, 1799, for New-Orleans, where he arrived after a tempestuous voyage of 40 days. He there received on the 8th, or 9th of February, 1800, a letter from his owners, dated 2d of January 1800, ordering him, by no means to go to any Spanish port, but rather to return in ballaft to New-York. In a fubfequent one, directed to the Havanna, dated the 29th January 1800, and written on the very day of recieving an account current from Santa Maria Cuefta and Co. charging them with 50 boxes of fugar, paid on account of the freight of 5225 dollars, the plaintiffs blante the defendant, for not writing by every opportunity; and requeft him, immediately to return, to any port in the United States, alleging as a reafon, that the rate of insurance, on veffels trading from one Spanish port to another, was fo high as to run away with every thing made: at the conclufion however, of the letter, the plaintiffs add, "all the fault we find, "and which is a great one, is, your omiffion and neglect of "writing us, by every opportunity, and conclude with wish Feb. 1804. V. Codwise &c. John Hackez, ❝ing you speedy back." From New-Orleans, the defendant ALBANY. wrote, acknowledging the receipt of the plaintiffs positive directions to return, but stating at the same time, the impoffibility of his immediate compliance, as he had with the proceeds of the bill on Rolf, purchased on account of the plaintiffs, a cargo of fugar boxes, with which it was his intention to go to the Havanna, and invest the proceeds in a cargo for New-York. In confequence of this, the defendant failed from New-Orleans to the Havanna, where after a paffage of 9 days, he arrived on the 7th of April, 1.800, fold his boxes, bought with the amount of the fales, a cargo of Molaffes, fhipped them on board his own veffel, fet. fail for New-York, and reached the quarantine ground in the month of June, .1800. The plaintiffs here took poffeffion of the veffel and her cargo, which they fold on their own account. It was admitted that the plaintiffs had infured the molafses as their own property, and had also effected policies on the vessel on her several voyages. The defendant gave in evidence, that on his firft arrival at the Havanna, in December, 1799, the veffel was defective in her fpars, and the witness who teftified to this, depofed, that he would rather not have come to the United States, than have embarked in her in December. He further added, there was then no convoy for the United States from the Havanna. It appeared, however, on the cafe, that in the 40 days paf fage from the Havanna to New-Orleans, the ship, notwithstanding the bad weather encountered, never complained in body or rigging. The general veracity alfo, of the defendant's witnefs was impeached. From the log-book it appeared, that no mention was made of any failure in the mafts or rigging; that, in the last voyage, much tempestuous weather was experienced off Sandy-Hook, in which water mixed with molafles was pumped up, and fometimes more molaffes than water, Some loofe declarations of the plaintiffs, made to particular friends of the defendant, were given in evidence, tending to fhew that the defendant had acted according to the belt of his knowledge, and that he was an honeft man; confefling alfo Feb. 1804. V. ALBANY, that he had taken the bill on Rolf to purchase a cargo on their account; and that, though they were diffatisfied with Codwife, &c. his not writing, they never faid any thing about his disobediJohn Hacker. ence of orders. The defendant, in addition to this, offered to prove that he had, in every part of his conduct, advised with the correspondents of the plaintiffs and followed that course they fanctioned, The counsel for the defendant contended, at the trial, 1ft. That the words in the letter of inftructions, "as a laft "refort, in cafe you can procure no freight for the United. "States, you may then take freight for the Havanna, and «from thence to New-York, provided you have one that "offers that will answer," left the defendant to exercise his difcretion in the employment of the ship, in cafe no freight fhould offer for the United States. 2d. That the plaintiffs declaring themselves fatisfied with the manner of employing the ship, and declaring, in writing, that the only fault they found with him was, his not writing oftener, was either a waiver of any claim for deviation, or was evidence of the defendant's having difcretionary power of employing the veffel, in cafe no freight offered at the Havanna. 3d. That the season of the year, ftate of the fhip, the want of freight, convoy and advice of agents, formed a justification. 4th. That the infuring by the plaintiffs the vessel and cargo from Havanna to New-York, and accepting them on their arrival here, and exercising every act of ownership over them, was an adoption of the conduct of the defendant, and a complete bar to a recovery in this fuit. His Honor, Mr. Juftice Radcliff, before whom the caufe was tried, having over-ruled all these points, charged in favor of the plaintiffs, and the jury found accordingly. On these circumstances, and on the four antecedent reafons, it was moved to set aside the verdict and grant a new trial. Hamilton for the defendant. It will be contended that the facts, as they appear on the cafe, evince an abfolute breach of orders. But we rely that, even allowing they were broken OF THE STATE OF NEW-YORK. an Feb.1804. Codwife, &c. V. !, in various particulars, there has been an adoption of all the ALBANY, acts. If fo, then they will be confidered as done on account of the plaintiffs, and the defendant ftands excufed from fwering in damages. This is evident, because in their letter John Hacker. to him, after full information of all that had paffed, they not only do not difavow a fingle tranfaction, but go fo far as to adopt them, by faying the only fault they find with him is, that he did not write. This certainly is exactly the fame as faying, we are perfectly fatisfied with your conduct. In converfations with individuals the fame ideas were, after a full knowledge of all circumftances, in more then one inftance reiterated. The expreffions of difcontent, which the letters of the plaintiffs contain, are all referable to tranfactions previous to the laft letter, and were written before the account of the shipment of fugar by the Ohio had arrived. This was received by them, and fold on their own account. Was there no other circumftance to fhew the plaintiffs' adoption of the defendant's acts, this would fuffice; but others are prefented, from which they cannot escape. Knowing all that had happened, they infure the laft cargo, that of molaffes, on their own account, receive it from capt. Hacker when he arrives, and fell it on their own account without municating with him in the leaft. Every one of thefe acts are, after a full knowledge of the molaffes having been purchafed and shipped, on their account. In commercial affairs between agent and principal, for fuch the parties here really are, the flighteft affent of the principal fhould be conftrued as an adoption of his agent's acts, becaufe it is neceffary, from their fituation abroad, that they fhould occafionally act in a latitudinary manner. If, what is thus tranfacted be bona fide, the moft trivial circumftance fhould be feized by this court, to fay it is a ratification of all that has taken place. The court will fee that this rule ought to be strictly enforced against the principal. Its being fo will not, in the leaft infringe on the rule of law which makes the agent refponfible. If the principal defires to enforce it, he is at perfect liberty fo to do; but if he does not take his pofition on the rigid letter of legal doctrine, any equivocal act ought to be deemed an affent. It is his duty to difavow by fome open act. In |