SMITH V. CARRINGTON, 8 U. S. 62 (1807)

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U.S. Supreme Court

Smith v. Carrington, 8 U.S. 4 Cranch 62 62 (1807)

Smith v. Carrington

8 U.S. (4 Cranch) 62


A witness interested to diminish certain admitted items in the plaintiff's account is still a competent witness to disprove other items.

The defendant having read a letter from the plaintiff's agent in answer to a letter from himself cannot give in evidence a copy of his own letter without proving it to be a true copy by a witness.

To introduce into a cause the copy of any paper, the truth of that paper must be established and sufficient reasons for the nonproduction of the original must be given.

The court is bound to give an opinion to the jury on a question of law upon request if it be pertinent to the issue, but not if it involve a question of fact.

This was an action of assumpsit brought by the plaintiffs in error, subjects of Hamburgh, to recover the balance due upon an account current, the debit side of which consisted principally of the following charges, viz., insurance made in Hamburgh on the defendants' ship Abigail from the United States to Hamburgh, and on the ship and cargo from Hamburgh to the Havana, and on an intended voyage back from the Havana to Hamburgh; advances made to the defendants to make up a cargo to the Havana; bills of exchange accepted and paid; cash advanced, and commissions, charges, and interest. chanrobles.com-red

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The credit side consisted chiefly of the proceeds of the freight of the ship and of sundry articles of merchandise; remittances by bills of exchange; the sales of the ship (she having been condemned and sold in London by virtue of a bottomry bond given by the defendants to the plaintiffs), and of five percent of the premium of insurance on the intended return voyage from the Havana to Hamburgh, the same having been returned by the underwriters to the plaintiffs, in consequence of the ship's having finished her voyage in the United States instead of returning to Hamburgh.

At the trial below, the plaintiffs took a bill of exceptions, which stated,

1st. That the defendants offered as a witness one Peleg Remington, who had become jointly and severally bound with the defendant Carrington in a bottomry or respondentia bond to the plaintiffs in the sum of $31,950, conditioned to pay to the plaintiffs that sum on the return of the ship to Hamburgh, the same being the amount advanced by the plaintiffs to the defendants in Hamburgh, and that the ship should so return, for which advance, with other demands, this action was brought. To the admission of which witness the plaintiffs objected, contending that he was interested to diminish the balance due from the defendants to the plaintiffs. But the defendants insisted he was a competent witness as to all the items of the account except the advances for which he was bound, particularly with respect to a charge of $13,718.56 for premium of insurance on the intended return voyage from the Havana to Hamburgh, and which voyage the defendants contended was never begun, and therefore they ought not to be charged with that premium, and especially as the defendants had expressly waived all objections to every other part of the plaintiffs' account. Whereupon the said witness was suffered by the court to testify as to the charge of that premium only. The bill of exceptions states it as admitted that by the law of Hamburgh, the underwriters are not bound to return the premium upon a change of the voyage unless that change be notified before the vessel sails. chanrobles.com-red

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2d. That the defendants offered in evidence a paper purporting to be a copy of a letter from the defendant Carrington to Smith & Ridgeway of Philadelphia, the correspondents of the plaintiffs, and a letter from Smith & Ridgeway to Carrington purporting to be an answer thereunto, but gave no proof that the said copy of Carrington's letter was a true copy of the original, but it was not denied to be in his handwriting, and it was proved that he was in Canton, and not in the United States, at the time of trial, and had been in Canton for two years before, but had been corresponded with on the subject of this action since its commencement. Whereupon the court permitted the copy and the letter to go in evidence to the jury.

3d. The plaintiffs, after stating in the bill of exceptions and referring to all the testimony and other evidence in the case, but not stating distinctly the material facts which they supposed to be the result of that testimony and evidence and on which their prayer was founded, prayed the court to declare its opinion to the jury whether, if the plaintiffs had actually paid the premium to the underwriters before notice of the change of the destination of the ship, they had a right "under the circumstances of the case" to recover the same of the defendants. But the court refused to deliver an opinion particularly thereon.

4th. The bill of exceptions further stated that the court, prior to the request last mentioned, declared to the jury that

"The case wholly turned upon the point whether or not the defendants had given due and seasonable notice of the change of the destination of said ship. That it was a question proper for the jury to decide whether such due and seasonable notice had been given, and that if they were of opinion that it had been so given, on considering the whole of the evidence, they ought not to allow the plaintiff's said charge for the said premium, and with that direction left the same to the jury, and the jury aforesaid then and there gave their verdict for the plaintiffs for the sum of $13,677.08 only, and disallowed the said charge and demand of the plaintiffs for the said premium

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of insurance, except one-half percent which the jury allowed."

The errors assigned by the plaintiffs in error were

1st. That the court admitted Remington to testify to the point and under the circumstances mentioned in the bill of exceptions.

2d. That the court admitted the writing purporting to be a copy of a letter from the defendant Carrington to Smith & Ridgeway, and a writing purporting to be a letter from Smith & Ridgeway to the said Carrington, to be read in evidence, as stated in the bill of exceptions.

3d. That the court directed the jury that the case turned wholly upon the point whether due and seasonable notice had been given by the defendants of the change of the voyage, as stated in the bill of exceptions, and that this was wholly a question of fact which it was their exclusive province to determine.

4th. That the court refused to direct the jury, in case it was fully proved to their satisfaction, that the plaintiffs had paid the premium in question previous to any notice or information whatever of the change of the voyage, as stated in the bill of exceptions, that they were entitled to recover of the defendants. chanrobles.com-red

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