The fiat for the injunction was made 15 March, 1821.
At Spring Term, 1821, the defendant Burges answered that he was a purchaser and indorsee of said bond for valuable consideration, and asked the benefit of the provisions of the act of 1800, ch. 9, and therefore prayed that the injunction might be dissolved; at which time the injunction was dissolved with costs, and the bill continued over as an original, and an order made that upon the payment of the whole judgment into the office of the clerk and master, the defendant Burges should not receive the same until he had given bond with security to answer the final decree in this suit.
The defendant Murfree answered that he was a purchaser and indorsee without notice; that after he received the bond he asked payment of complainant by his agent, and said agent did not inform the defendant that complainant made any pretense at that time that the fish he received were unsound, though he did state that some of them had never been delivered. Defendant believed it was nothing more than an excuse, and, therefore, did not inform the defendant Burges of it, to whom he assigned the bond for valuable consideration on 10 October, 1819, or thereabouts.
The defendant Maer answered, and admitted that complainant bought fish which he had at a fishery on Roanoke; that the prices stated by complainant were those agreed on by them; that the complainant attended on the day when the fish were to be delivered, and stated that he had no boat ready, and desired a postponement of the delivery till the next day, or some day fixed on by the complainant. Such postponement was had till then, when one Samuel Hussy attended for the defendant and counted out 168 barrels of herrings, 77 barrels of shad, 42 barrels of rock, which amounted to $1,176; that said Hussy stated to defendant that he delivered said fish by request of the complainant to the captain of the boat employed by the complainant, which boat's crew (365) *Page 170 commenced taking the fish on board before Hussy left there; that he was not present, but believes the account of the fish as above rendered to him by Hussy was correct, and that the same were delivered to complainant or his agents as charged.
Defendant answered, further, that he knew nothing personally of the quality of the fish, but that he was informed by his agent, and believes, that they were good; that the complainant and he agreed that part of the barrels should be opened, and that by that means the quality should be ascertained, and that his agent, Hussy, informed him that he did so, and the fish were sound, and that those not opened were well filled with pickle, which he ascertained from the sound in moving the barrels to count them.
Defendant further answered that he sent the account aforesaid to William R. Minor, and asked him to take the bond of complainant, which he did for $1,176, as aforesaid; that he assigned to the other defendant, Murfree, for valuable consideration, and he could give him no notice of complainant's equity, for he had not then heard of it; and concludes with a prayer for costs, etc.
To these answers replications were taken, and the cause set for hearing, and transmitted to this Court for a final hearing.
From the depositions it appeared clearly that a day or two after the date of the bond mentioned in the bill the complainant had received 202 barrels of fish, and that a delivery was made of the whole quantity contracted for; but that the remaining 50 barrels were left by complainant's boat until the first of June, when complainant, by letter, directed them to be sent to Cedar Landing, and that it was done.
With respect to the fish being spoiled, there was evidence on both sides. The complainant comes into this Court seeking a reduction of the judgment at law upon the twofold ground that the quantity of fish he contracted for was not delivered, and that, of the quantity delivered, a considerable part was so damaged as to be unfit for use and totally unsalable.
That the number of barrels stipulated for was delivered to the complainant seems to be placed beyond all doubt by the depositions of Hussy and Minor, the agents of the defendants; and if after the former had counted them out and gave the complainant a control over them, and after Minor had, at the complainant's request, conveyed the 69 barrels to Cedar Landing, the complainant declined receiving them, he alone must be responsible for the loss, for the defendant could do nothing more to make the delivery complete. *Page 171
The question as to the unsoundness of the fish is involved in some difficulty as to the facts. There can be little doubt that many of the barrels received by Halsey, to sell on account of Pugh, were unmerchantable, and that of these, some were marked with black paint; but whether these were the identical barrels which were received from Maer does not appear, though those also were marked with black paint. But (367) Pugh might have bought, and Halsey might have received, other barrels with a similar mark; or other barrels might have been put on board the boat in her passage up the river. I admit that the probability is strong that the fish which were spoiled had been purchased by Pugh from Maer, but better evidence of the fact might have been adduced.
But then the question occurs, Were the fish unsound when delivered to Pugh's agent, or did they become unsound afterwards, from causes which were in activity at the time of the delivery (for the same consequence will follow in both cases), or did both cause and effect begin their existence after their sale? Halsey says that he opened several of the barrels in the presence of the skipper, who was well satisfied with their soundness, and that he knew by the sound of the pickle in others that they were properly filled. Minor sent some of the same fish to Richmond, and retailed others in the neighborhood, and heard no complaint respecting either. The leakage of the cask and the escape of the pickle are well known to be the most frequent cause of such fish becoming spoiled, and this may have happened in the shipping and stowing.
On the other hand, it is stated by the clerk of Halsey that many of the barrels were without pickle, and that he was under the necessity of filling them up; so that from the evidence now before the Court I should be wholly at a loss to determine whether the fish were unsound when delivered, or in the way of becoming so, or whether they became unsound afterwards. The only thing certain is that Pugh sustained a loss from their unsoundness. But supposing that there was evidence of the unsoundness of the fish when sold, yet there is none of a warranty, or of a knowledge in the vendor that they were so, nor any allegation in the bill to that effect. This Court cannot, any more than a court of law, allow for the deficiency in the value of an article sold in a case where the maxim of caveat emptor applies. (368)
Upon the motion to dismiss on the ground of the injunction being issued more than five months after the judgment, though an opinion on that point is not essential to the decision of the cause, as I think the bill ought to be dismissed for the reasons I have given, yet, as a case of practice, it may be usefully settled.
The act of 1800 was passed for the avowed object of preventing delay and debtors from thus defeating the claims of their creditors. Now this is effectually obviated by granting an injunction upon the terms of *Page 172 paying the money into the office — for thus all risk of the debtor's insolvency, or that of his securities, is avoided; and the money is held to be paid according to the decree, without a moment's delay. To dismiss the bill, therefore, on this objection, where an injunction is granted under the same terms with this, would be to sacrifice the manifest spirit of the act to its literal construction. I cannot, therefore, believe there is any weight in this objection.
By the Court, Bill dismissed.
Cited: Smith v. McLeod, 38 N.C. 401.