refused to give the direction prayed for. The defendant excepted,
S’, The third hill of exceptions. The defendant then prayed the court to dire'et the jury, that the paper dated the Í9lh of August 1795, and admitted to be written and signed by the defendant, and by him sent to the plaintiffs, and produced and read by the plaintiffs to the jury, was not admissible evidence, and ought not to be' regarded by them, unless the plaintiffs also produced and read to the jury the letters of the defendant to the plaintiffs upon the subject of the reference, dated the 1 fifth and Í 9th of August l795.
The Courtrefused to give the direction. The defendant excepted.
4. The defendant’s counsel having sworft John Purviancc, Esquire, one of the plaintiffs’ counsel, offered to put to him the following question': “Have you in your possession the letters mentioned to have been written by the defendant to the plaintiffs of the 18th and 19th of August 1795?” To this qestion being put to the witness, the counsel for the plaintiffs objected.
Done, J.It is not proper for the counsel to answer the question, unless he is willing to answer it.
Sprigg, J.I think the' question ought to be answered.
5. The fourth hill of exceptions. The plaintiffs- having given In evidence the contract before mentioned* then gave in evidence the following letter from the defendant to- the • plaintiffs dated the 17th of August 179oi “When I agreed to purchase the Brandy which you should receive by the ship Arm, at the rate Of one dollar and fifty cents p. gallon, it was intended by Mr. Gilmor and myself that it should be of the quality generally received from Bourdcaux, and called Bourdeaux Brandy, that the quantity was about 9(5 pipes; and under an assurance from Mr. Gilmor. that no more Brandy' would arrive in the ship, but that which Was consigned to your house, to wit, the ninety pipes, and a email quantity of oldCogniac, *393which Mr. Gihnor had ordered for his own use, and the use of two other friends — J therefore Calculated that the amount in money of the purchase would be from 14 to 15,000 dollars, counting the guage of the Bourdeaux pipes,, as usual, not more than 100 to 110 gallons, and had prepared an endorser for my notes accordingly. Being in Phi* laddphia when the Ann arrived, and the Brandy landed, it was received in my warehouse — On my return home, two or three days after it was landed, and on examining it, I found the quality not Bourdeaux Brandy; the quantity about one half more than was expected, and about 50 pipe» of Brandy offered for sale in the town, in other handst which were imported in the Jinn. I therefore inform you, that I do not hold myself bound to the purchase, because the quality is not Bourdeaux Brandy; the quantity is much more than 1 counted upon, or had a right to count upon, and because a considerable quantity has been imported in the ship, and put into the market, more than that received by your house.” The plaintiffs also gave in evidence the letter from them to the defendant, dated the 17th of August 1795, as herein before stated, and also the following letter from the defendant to the plaintiffs, dated the 1 Stfe, of August 1795: “In your note of yesterday you say 1 have taken a new ground as a reason for my not complying with my contract, and that as a man of honour and a merchant, I am bound to abide by my contract, unless I can show such reasons as will justify anoncorapliance,and that, to you, those adduced appear totally inadequate to the purpose — and you observe, that there is but one way left, which is, to lay our several pretensions before indifferent men, and to abide by their determination, and if I agree, to let you know, that two men may be named, and let us enter into bonds for abiding by their award. In answer, I observe, that I have taken no new ground; that my objections are true, two of them you will not, I believe, deny — those are, that the quantity is more than about ninety pipes, and that you assured me no other Brandy would be imported in the ship. I am not afraid to meet the decision of indifferent judges; they may be named when you please; and as to our entering into bonds, I feel myself at a loss t<¡> know what I should bind you to. If my objections are considered as suilicient to clear me from being bound to the purchase, I have then no other claim olí you, but to pay *394for tíié-pórterage of the Brandy to my warehouse, ántl fmf your doing So; I desire no bond. If the gentlemen who ínay be chosen would say that my objections are not well founded* and that, therefore, I must be bound to the purchase of the Brandy, I shall agree,- so far as relates to any act within my own power; but I must observe, it may not be in my power to' obtain the endorser you called for.” The, plaintiffs also .gave in evidence the'letter from them to the defendant, dated the'18th of August 1795, herein before stated; arid also the following letter from the defendant t© the plaintiffs, dated the 19th of August 1795: “I repeat* that if it is judged that I shall be obliged to keep the Brandy, or,any part of it, which Í think scarcely possible,! will offer you no endorser. I da believe¡jhat neither Gen. Sinith or Mr. Patterson would act on this occasion, as I’suppose they would consider themselves not conversant enough with Brandies to determine whether this in question is Bourdeaux or Straights Brandy; either of these gentlemen could very readily discover that this Brandy is not as good as they are accustomed to use, but not being in habits, perhaps, of oh-* serving nicely the different qualities, would be at a loss to give your’s a name. I therefore object to either of these gentlemen; and propose for your choice of ofie, three gentlemen, dealers in the article — they are Mr. John Holmes, Col. Strieker, and Mr. Engélhard Yeise'rThe plaintiffs also offered in evidence the letter from them to the defendant, dated the 19th of August 1795, herein before stated; also the submission entered into after the letters, dated the 19th of August 1795, and herein before stated; and also tljé award made in pursuance thereof. The plaintiffs then prayed tbedirection of the court to the jury, that the award was authorised by the submission, and within the terms of it.
Martin, .(Attorney-General,) for the Plaintiffs,cited Green vs. Warren, 1 Blk. Rep. 475.
Doné, J.The court are of Opinion, that the terms and Stipulations between the parties, on which their matters in dispute were to be submitted to reference, are matters of fact to be determined by the jury, on evidence adduced to them. The court, therefore, cannot give the direction prayed for by the counsel of the plaintiffs. The plaintiffs excepted.
*3956, The fifth bill of exceptions. The plaintiffs further proved, that on the 12th of October 1795, they drew the fallowing written order on the defendant, to deliver the Brandy to Yates and Campbell: “You will deliver Messrs. Yates and Campbell the 10,1 pieces ofRrandy, and you will account with me for the piece that was staved. My son Robert will calluponyou to-day or to-morrow for that purpose.” That in pursuance of that order, the Brandy was delivered, on the 13th of October 1795, to Yates and Campbell, and by them sold at public auction, by order of the plaintiffs, on the 16th of October 1795. The plaintiffs then produced, and offered to read to the jury, a paper purporting to be the original list or memorandum, upon which was entered the different casks containing the Brandy, and upon which the entries were afterwards made that v/ere transferred to the books of Yates and CampJiflL the persons to whom the same were sold by Yales and Campbell, and the prices at which the same were sold; and proved that the same waft made out in the handwriting of one-^ ]^atrick,x who at that time acted as clerk of Yates and Campbell, and hq being present qt the sale, made out the same by thek order; and that Patrick was now dead. To the reading, of this paper to the jury, the defendant objected, on the ground qf its being inadmissible evidence.
Bone, J.The court are of opinion, that the objection is not a good one, and they permitted the paper to be read to the jury. The defendant excepted,
7. The plaintiffs then prayed the opinion of. the court,, and their direction to the jury, that if the jury should believe that no part of the contract was submitted to the arbitrators, except whether the defendant should take any, and what quantity of the Brandy, that then the award made cannot operate to, change, alter qr annul, the contract, either as to the price to, be paid,, the time when the payments were to be made, or the manner in which the payments were, to be secured, those parts, of the contract not being submitted to the arbitrators,.
Bone, J.The court are, of opinion, that the award does not destroy or annul the original contract between th.e parties, further than the award pursues, and conforma-; Pi? to the tenp of the rejerepge.
*396The court are also of opinion, that the plaintiffs camigt on the first count in their declaration recover damages, except for a noncompliance with the award, so far as the same is conformable to the submission.
8. The sixth bill of exceptions. The plaintiffs offered in evidence, that the defendant, on the 27th of July 1795, entered into a contract with the plaintiffs, by the two following letters: [The first being a letter from the plaintiffs to the defendant, and the other from the' defendant to the plaintiffs.] “Agreeable to our promise, we now conclude on selling you whatever Brandy we may have on board the Jinn from Bourdeaux, upon the terms you proposed; that is, you are to pay us at the rate of one dollar anti fifty cents per gallon for the whole, which we estimate at about 90 pipes, (exclusive of some old cogniac we have on board which is not meant to be sold,) whatever the proof may be, ■ provided the ship arrives in six weeks from this timéi Ón, the delivery of the Brandy you are to' give us your and Mr. J. Carre.rc's notes for'the whole, at S and 4 months from the’ commencement of the delivery — Your agreéing to the preceding terms wilt be binding on,” &c.'" Then the ' other letter from the ' defendant to the plaintiffs was dated the 27th of July 1795, and is before stated in the first bill of exceptions. ’ The plaintiffs also offered in evidence, that the said vessel did arrive within six weeks, having on board 18,025 gallons,' equal to 124 pipes of Brandy, which in the absence of the defendant was received at his warehouse according to the defendant’s directions. They also offered'the' Several letters which 'passed between the plaintiffs and' defendant, herein before set' forth, dated the 17th,’ 18th/and 19th of August 1795; also the submission to the ¿rbitrators and theirawardi’and gave iñ evidencé that a copy of the ¿ward was delivered to the parties, ’’ The plaintiffs' then prayed the opinion of the court, 'and their direction to the jury, that supposing no part of the contract was submitted to' the’ arbitrators, except whether the defendant should take any and What quantity'of the Brandy, in that case the 'defendant by' the ¿ward was bound to take 90 pipes, or 10,000 gallons, of the Brandy, but at the same time was not by the 'award entitled to take the same without complying with/the terms el. *397the contract as to the price, the times of payment, and the manner in which the payment was to be secured.
Sprigg, J. [Dons, J. not present,)refused to give the direction prayed for. The plaintiffs excepted.
9. The seventh hill of exceptions. The plaintiffs having offered in evidence, that on the 10th of October 1795, being Saturday, the plaintiffs called upon the defendant, and demanded of him whether he would retain the! Brandy, so delivered into his warehouse, on the terms of the contract, and the award, to which the defendant replied that he would not, that’he had never-considered the Brandy as his, and that the plaintiffs might take it away whenever they pleased. That the plaintiffs then told the defendant, that they would take away the Brandy the next Monday, and if on a resale any loss should arise they, the plaintiffs, should consider the defendant responsible, and act accordingly. To which the defendant made no reply. The plaintiffs then proved, that on Monday the Í2th of October 1795, they drew an order in writing for the Brandy, on the defendant. That in consequence of that order the Brandy was delivered by the defendant to Messrs Fates and Campbell, the persons in the order named. The defendant having offered to subjoin the above statement of the evidence, admitted to have been given, to the statement of facts made by the plaintiffs, as the foundation of their prayer for the opinion of the court given on the preceding bill of exceptions,
The Court, [<S'prigg, J.]]refused to have the same added, on this ground, that the same had no relation to the subject matter by the prayer submitted for the consideration of the court. The defendant excepted.
10. The eighth hill of exceptions. Upon the. statement in the sixth tall of exceptions, and the court having previously directed the jury, that by the award the defendant was bound to take 90 pipes, or 10,000 gallons, of the Brandy, the plaintiffs then prayed the opinion of the court, and their direction to the juryj whether, supposing no part of the contract "way submitted to arbitrators, except whether the defendant should take, any and what quantity of the Brandy, the defendant way in consequence cf the av/ard. *398entitled to take the same, without complying with the terms of the contract,
' Sprigs, J. (Done, J. not present.)The Court are of opinion, that under the award the defendant was at liberty to keep the Brandy without complying with all the terms of the original agreement herein recited- The plaintiffs excepted.
11. The ninth hill of exceptions. The defendant, by hi* counsel, proposed to add the statement in the seventh hill, of exceptions, to the last above statement; but the court refused to permit it to be added, upon the same ground it was refused to the statement in the sixth bill of exceptions, The defendant excepted.
12. The tenth hill of exceptions. The plaintiffs then gave in evidence, by Colonel John Strieker, one of the arbitrators, that previous to the award they the arbitrators never received.any papers relative to the matter in dispute, from either of the parties, but in the presence of the opposite party; that the arbitrators, previous to the giving the award, had but one interview with the parties, when each made a verbal statement of their case, and the plaintiffs left with the arbitrators the letter from the defendant to them, dated the 2,7th July 1795, herein before stated. That he the witness, did not know whether the defendant saw that paper when it was delivered to the arbitrators by the,plaintiffs, or not, and that he does not recollect whether the defendant did or did not agree to submit to the arbitrators whether he the defendant should give to, the plaintiffs, an endorser for the price of the Brandy, in case he should be. adjudged by the arbitrators to take the same, or any part M.flmretjf. That the letter from the defendant to, the.plaintfbpve stated, on the 27th July 1795, was the. paperupftrf/which the arbitrators acted'; and that having- deterpjtjn^ljbat the defendant should keep 90 pipes, or 1,0,000. gallons,*of the Brandy, th.e arbitrators determined that he ..¿ought to give an endorser, it being so provided by the contract,. . The plaintiffs then prayed the opinion of the court : 'to.the’jury, that if they believed such evidence, that then such evidence is sufficient, in point of law, to. support the first count in the plaintiff*’ declaration,
• Sphigg, J. (Done, J. not present.)The couYt having already determined, “that the terms and stipulation* t¡**399tween the parties, on which their matters in dispute wet© to be submitted to reference, .a»!»matters of fact to be determined by the jury,” and the validity of the award thus depending on the opinion of the jury, they cannot give the direction as prayed. The plaintiffs excepted.
TP. Dorsey and Harper, for the Appellant,stated, that the question to be argued on the fifth bill of exceptions, was, Whether the memorandum or original list of the sales of the Brandy ought not to have been admitted in evidence? They contended that it ought not, as it did not fall within the exception to the genera! rule'of law, that the best evidence, of which the nature of the case was susceptible, must be given. That Yates or Campbell, both of •were alive, ought to have been produced to prove They cited Peake's Evid. 10. Price vs. The Earl of Torrington, 1 Salk. 285. Bull. N. P. 282, 283. Cooper vs. Marsden, 1 Esp. Rep. 1. Warren vs. Greenville, 1 Stra. 1129. Smartle vs. Williams, 1 Salk. 245 & 280. Williams vs. The East India Company, 3 East, 192; and Davis vs. Batty, 1 Harr. & Johns. 264.
Martin, Pur víante, and S. Chase; jun. for the Appellees,cited Digby vs. Stedman, 1 Esp. Rep. 829. Pitman vs *400Maddox, 2 Salk. 690. 1 Lofft's Gilb. ch. 1, p. 5; and Biggs vs. Lawrence, 3 T. R. 454.
*39913. The eleventh bill of exceptions. The defendant then prayed the opinion of the court to the jury, that the award produced and given in evidence to them is not admissible evidence to them upon the second count in the plaintiffs? declaration; and that upon that count it ought to be disregarded by them.
Done, J.The court are of opinion, that the award, ef‘
ther separate from or connected with the original contract in this case, is not legal or competent evidence to be admitted in support of the second count in the plaintiffs’ declaration. The plaintiff’s excepted; and the verdict and judgment being for the plaintiffs, the defendant appealed to this court. 1 he cause was argued on the fifth bill of exceptions, at December term 1806, before Chase, €h. X. and Buchanan, and Gantt, J. by PP¡ Dorsey and Harper, for the Appellant; and S'. Chase, jr. for the Appellees, and was reargued at December term 1807, before Chase, Ch. X» and Txlgiiman, Buchanan, Nichouson, and Gantt, J.