JOSHUA SCHOLEFIELD AND JOHN TAYLOR, PLAINTIFFS IN ERROR
v.
JESSE EICHELBERGER, SURVIVING PARTNER OF JOHN CLEMM, DEFENDANT IN ERROR.
Supreme Court of United States.
*590 The case was argued by Mr Donaldson and Mr Taney, for the plaintiffs in error; for the defendant, a printed argument was submitted to the court by Mr R. Johnson and Mr R.B. Magruder.
*592 Mr Justice JOHNSON delivered the opinion of the Court.
The action here is assumpsit to recover the balance of an account current against Eichelberger, survivor of Eichelberger and Clemm, the latter having died during the war. The defence is, that the contract was made during war, and therefore void.
*593 The doctrine is not at this day to be questioned, that during a state of hostility, the citizens of the hostile states are incapable of contracting with each other. For near twenty years this has been acknowledged as the settled doctrine of this court, and in a case which proves it to be a rule of very general and rigid application (The Rapid). Even the exception commonly quoted of ransom bonds, has been shown, I think, in the case of Potts v. Bell, to be no exception; since it grows out of a state of war; is, ex vi termini, a contract between belligerents; and from its nature carries with it the evidence of the fidelity of the parties to their respective governments. To say that the rule is without exception, would be assuming too great a latitude. The question has never yet been examined, whether a contract for necessaries, or even for money to enable the individual to get home, would not be enforced; and analogies familiar to the law as well as the influence of the general rule in international law, that the severities of war are to be diminished by all safe and practical means, might be appealed to in support of such an exception. But at present, it may be safely affirmed that there is no recognized exception but permission of a state to its own citizen, which is also implied in any treaty stipulation to that effect entered into by the belligerents.
Nor do the learned gentlemen who argued this cause controvert the general rule; they only attempt to except this case from its application: First, by an imputed permission on behalf of the United States; Second, by shifting the creation of the contract from the date, which appears on its face, to the time of delivery of the goods; which, in point of time, were not shipped until after the peace.
On the first of these grounds of exception there is a very strong case on record, to show that such a relaxation of the laws of war is not to be inferred from ordinary circumstances, if indeed it may be inferred at all; it is the case of the Count de Wohrenzoff, decided by the lords of appeal, in the year 1781. It was the case of an importation of French wines from Bourdeaux into Ireland, during the war of our revolution, and the evidence to justify it was, that the trade in wines between Dublin and Bourdeaux had been going on from the commencement of the war, openly and without interruption from the officers of the customs; nay, that an additional duty had been imposed *594 upon their importation since the commencement of the war. Yet they were condemned, and their condemnation affirmed. These circumstances are infinitely stronger than those relied on in this case; since the permit to carry on commercial correspondence during the war, cannot reasonably imply more than to sanction an innocent correspondence; a correspondence leading only to legal results, not having for its objects any unpermitted acts, or acts inconsistent with the relation of members of hostile states.
It will be perceived here that the court does not deny the power of belligerent states, so to modify the relations of a state of war as to permit commercial intercourse or other intercourse according to their will. They who give the law may modify it, and except from its operation whatever ground they choose to declare neutral. The language of jurists is uniform on this subject, and reason, policy and humanity, sustain the exercise of such a power.
The second ground of exception relied on by the plaintiffs, suggests several considerations.
It is insisted, that the goods having been shipped subsequent to the war, and coming to possession of the survivor of Eichelberger and Clemm, constituted a sufficient ground of contract, without reference to the time of purchase, the delivery raising the contract for payment, and the receipt by the survivor being the receipt of the firm to which it was shipped.
1. Had the articles of copartnership, or the terms of it, if entered into without written articles, appeared upon the bill of exceptions, the court would have been called upon to consider this exception, with reference to the terms of those articles. There is no doubt that the liability of a deceased copartner, as well as his interest in the profit of a concern, may by contract be extended beyond his death; but without such stipulation, even in case of a copartnership for a term of years, 3 Madd. 245: it is clear that death dissolves the concern. In the absence of proof to the contrary, we can only take this as the case of a general association, without articles extending it beyond the life of Clemm, and then the shipment having been made after his death, and no part of the proceeds having ever come to his use, the case furnishes no ground for charging his estate.
*595 2. But this is not the true ground on which to place this question. The consideration fatal to the claim of the plaintiffs, that the letter on which these advances were made, was in itself a nullity, and could not be made the basis of a contract, on which this court would entertain a suit; the purchases made under it could add nothing to its validity, nor were these goods ever the property of these plaintiffs, for they were purchased for these defendants, and finally shipped to them as their goods, not those of the plaintiffs. The plaintiffs advanced the money; with them the contract was for money paid and expended, but in the purchase and sale of the goods they were but the agents, carrying into effect a contract between the seller and these defendants. Hence the insurance against fire, No. 1, for the loss would have been that of defendants, not of plaintiffs.
These considerations leave no doubt upon the mind of this court, that the decision of the court below was correct.
The judgment is affirmed.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel: on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs.