Mathewson v. Clarke, 47 U.S. (6 How.) 122 (1848)

*Henry Mathewson, Respondent and Appellant,

[*122

v. John H. Clarke, Administrator of Willard W. Wetmore, Appellee.

Although a new member cannot be admitted into a partnership without the consent of all parties, yet a person who has obtained a share in the concern can, after the partnership has expired, maintain a suit in chancery for his share of the profits.1 The language of the complainant in his bill, “ that he became interested in a ship and cargo at and from Gibraltar,” is decisive of the question of time when his interest commenced, and shows that he had no interest until she arrived at Gibraltar.

Where a master and supercargo was to receive a certain sum per month as wages, and a commission of five per cent., and also one-tenth of all the profits, and it was agreed that these were to be in full of all services and privileges, the master and supercargo had no right to traffic upon his own account, for his own benefit.

If the master and supercargo, after the loss of his first vessel, charters another and uses the capital of his partners in prosecuting his trade, informing his owners thereof and expressing his willingness to continue the business upon the same terms as before, to which they did not object, such continuance of the business must be governed by the same rules which regulated the transactions in the first ship.

This was an appeal from the Circuit Court of the United States for the District of Rhode Island.

The record was very voluminous, being a printed volume of more than five hundred pages, which contained numerous letters and accounts relating to trading voyages to different and distant parts of the world, from October, 1820, to Novem-2^' There were three reports from masters in chancery m the court below, and a supplemental report made to this by agreement of counsel and sanction of the court, the arguments of counsel referred to a great number of these ransactions, of which it is impossible to give any other than a general outline.

In the year 1820, there were in Providence, Rhode Island, wo mercantile houses, one known by the name and firm of n waru Carrington & Co., and the other by that of Cyrus rUe bouse of Edward Carrington & Co. was comp°se ot Edward Carrington and Samuel Wetmore.

n otober, 1820, these two houses made the following g eement with Henry Mathewson, the present appellant:

Mathewson v. Clarke.

“This agreement witnesseth: That whereas Messrs. Lynch, Hill & Co., of the republic of Chili, have contracted and agreed with his Excellency, General San Martin, commander-in-chief of said republic, to furnish to him, or said government, a quantity of military stores, which contract has been assigned to Cyrus Butler and Edward Carrington & Co., who have undertaken to furnish the same. Wherefore the said Cyrus Butler and Edward Carrington & Co. on the one part, and Captain Henry Mathewson on the other part, all of *1Providence, in the *state of Rhode Island, on the 12th -* day of October, A. d. 1820, make and enter into the following agreement and stipulations, viz.:—

“ 1st. The said Henry Mathewson agrees to take the command of the ship or vessel the said Butler and Carrington & Co. shall provide for said expedition, and at all times to act as captain and supercargo thereof.

. “ 2d. The said Mathewson is to proceed to Europe, attend to the purchase of said military stores, proceed therewith in said ship to Chili and Peru, deliver the same, receive the payment therefor, and do all and every thing that may be necessary and advisable for the faithful accomplishment of said contract, both as regards the delivery of the military stores and the receiving the payment therefor, whether the said payments shall be in cash or in produce of the republics; and with the said payments, proceed to such ports in China, Europe, or the United States as may be considered most advantageous, and according to the instructions and recommendations of said Butler and Carrington & Co. Providing, further, that, should any circumstance have occurred, or should occur, to prevent the contract being complied with on the part of the Chilian or Peruvian government, or by General San Martin or his successor, then the said Mathewson is to use his best abilities and exertions to dispose of said military stores in the most advantageous manner, and to [the] best profit; and the proceeds of such sale embark on board said ship, and proceed therewith to such ports in China, Europe, or the United States as may be considered most advantageous, and according to the i ecommendations and instructions of said Carrington & Co, and C. Butler.

“3d. The said Butler and Carrington & Co., on their par, promise to allow and pay the said Mathewson fifty dollars per month, as wages as navigator and master of the ship, and a so the sum of seven hundred dollars as commission for attending and procuringthe purchase of said military stores in Europe, for delivering and making the sale of the same in Chi i or Peru, receiving the payment either in cash or produce o e

JANUARY TERM. 1 8 4 8. 123

Mathewson v. Clarke.

republics, and delivering the same in China, Europe, or the United States,—he conforming always to the instructions and recommendations of said Butler and Carrington & Co. The said Mathewson is to have allowed him all travelling expenses and charges that attach to business.

“It is further mutually agreed between the aforesaid parties', that after delivering or depositing the proceeds of the aforesaid military stores, and completing and finishing the aforesaid agreement, according to the tenor thereof, a new voyage and adventure is to be begun in the following manner:—

*“lst. The said Henry Mathewson is then to be admitted an owner in said ship of one tenth part, at the L 1 4 rate of her first cost in the United States, including repairs on hull, sails, and rigging, that may be put on after her purchase, either in [the] United States, Europe, or elsewhere; and also owner of one tenth part of her cargo, on such new voyage and adventure.

“2d. Said Butler and Carrington & Co. agree to sell said Mathewson, and he agrees to purchase, one tenth of the ship, on the terms heretofore described in article first.

“ 3d. Said Cyrus Butler and E. Carrington & Co. agree to furnish the sum of fifty thousand dollars (as a cargo for said ship) at the port where the said ship shall deliver and deposit the proceeds of said military stores.

“4th. The said Mathewson is to allow said Butler and E. Carrington & Co. interest, at the rate of six per cent, per annum, for his one tenth of ship and cargo, from the time the proceeds of the military stores (heretofore mentioned) are delivered or deposited in manner as heretofore stipulated.

sa^ Mathewson is, in this new voyage, to have liberty to proceed to such ports, countries, and places, backward and forward, for trade, freight, or other employment of the ship and cargo, as he may think most for the interest and advantage of the concern in said ship and cargo.

“ 6th. In this new voyage, as before described, it is mutually agieed, the said Mathewson shall have fifty dollars per month, as wages, as commander and navigator of said ship, to commence with the new voyage, and as supercargo a commission o five per cent, on the net amount [of] all property safely returned to. the United States, Canton or Europe, proceeding rom the original stock of fifty thousand dollars, together with

one tenth of all the profits and earnings made in the vovage or voyages, freights or otherwise.

, th- It is agreed that the wages and commissions specified agreed for in the sixth article are to be in full of all ser-ices and privileges, to Captain Mathewson, as master and

Mathewson v. Clarke.

supercargo during the voyage or voyages heretofore specified or otherwise.

“ It is understood, the said Mathewson is to have no privilege in the first voyage heretofore specified, and that the wages and commissions of seven hundred dollars allowed on that voyage are to be paid in the United States at the end of voyage.

'Signed) Cyrus Butler,

Edward Carrington & Co., Henry Mathewson.”

*19^1 In Pursuance this agreement, Mathewson repaired to *Europe, and in December, 1820, at the Texel, received the ship Mercury and her cargo from the other parties. He also received two sets of instructions, one genuine, and the other fictitious, to be used in case of capture. The true instructions commenced in this way:—

“Providence, November 13, 1830.

“ Capt. Henry Mathewson:

“Sir,—We herewith hand you the letter of Messrs. Lynch, Hill & Co., of Valparaiso, to Edward Carrington & Co., under date of June 15, 1820, accompanied with a contract made by their Mr. Lynch with General San Martin, commander-in-chief of the Chilian and Peruvian armies, and in behalf of said government. You will observe, on perusal of the letter and contract, that the muskets, carbines, and sabres, expressed in the first article in the contract, are to be furnished by Lynch, Hill & Co. themselves, and that the same articles mentioned in the second article are the ones intended to be supplied by ourselves, and are the same as we directed to be purchased by yourself in Europe, viz.:

20,000 muskets, of good proof. 7,000 carbines. 7,000 cavalry sabres.

“ The prices, you will observe, are stipulated at eight and a half dollars for the muskets, six dollars for the carbines and cavalry sabres, to be imported into Peru free of duties, and the proceeds, or payment for the same, is also allowed to be exported free of duties. The delivery of the said arms to e at any one port in Peru in possession of the patriots un er General San Martin, or where, on your arrival at any one o said ports, General San Martin may determine, on the coast or Peru. You will observe the contract provides that any a t cles, the produce of Peru, may be received in payment (a e current market price) for the arms; always by the agreemen and consent of both contracting parties, and that tie sam

Mathewson v. Clarke.

may be exported free of duties. You will also observe, that the duties on the import of any other articles of merchandise by said Lynch, into the port of Peru, are to be admitted towards the payment of the said arms. You will also observe it is understood, that if the payment is made in specie for said arms, it is permitted to be exported free of duties.”

The instructions then proceeded to tell him how to arrange his cargo, what to do when he got to Valparaiso, and continued thus:—

“ In the execution of this business it will require your best *attention and circumspection to weigh well all *- points and circumstances, and in conjunction with Lynch, Hill & Co., pursue that course best calculated to have the contract complied with, taking care at the same time, as much as possible, to have the payment therefor placed under favorable circumstances; or if circumstances should have occurred to defeat the expedition, and with it destroy the hope of having the contract complied with, you are then to adopt the next best plan to make the sales of our property to the best advantage. If the contract is complied with by General San Martin, we should recommend your fully loading the ship with copper (taking the same as payment towards the arms, particularly as it is to be allowed export free of duties) ; and taking copper may facilitate and help the government, and be the means of getting payment before the expiration of the eighty days limited in the contract, and taking the balance in specie, and proceed immediately to Canton; or if the contract is not complied with, and you should make the sale in Chili, or other place where copper can be procured at not exceeding fifteen or sixteen dollars the quintal on board, we should then also recommend your loading with copper, particularly if it should aid you in making sales of the arms ; and then taking the balance in specie, and proceed direct for China. After having disposed of the arms, and obtained the payment for the same, it will be of much importance that you reach China as direct, and with as little delay as possible. In order that a second deposit may be had for the property, and hat a new voyage may be begun anew, without any regard to the present one, after reaching Canton you will deliver all our property to Messrs. S. Russell & Co., except the fifty ousand dollars, which you are to retain as a capital for the s ip in any future operations you may think it advisable to th1' ^a^e’ either by trading or freighting, according as you i'h' T os^ profitable for all concerned; perhaps a cargo from na tor Chili or Peru may be a good investment. However,

Mathewson v. Clarke.

after you get to Canton, and take the fifty thousand dollars as a capital, you must be your own master, and do that which is best.”

The instructions then proceeded to provide for many contingencies, and concluded with a general reference, to conversations between the parties before Mathewson left the United States.

The fictitious instructions provided entirely for a trading voyage to Columbia River, thence to Canton, &c.

In April, 1821, having purchased a cargo of arms, Mathewson sailed from Bremen, in the ship Mercury, for Valparaiso, and arrived there in August of the same year. *1971 *From Valparaiso he went to Lima, where he arrived

-* in September. •

On the first of June, 1821, a transaction occurred at Providence which was the basis of this litigation. Willard W. Wetmore (and his administrator, the present defendant in error) claimed to have been admitted on that day as a partner in the firm of Edward Carrington & Co., and the following entry upon their books was produced upon the call of the defendant Mathewson.

“Providence, June 1st, 1821.

Day-book. Edward Carrington & Co.—New concern. Edward Carrington 4,

Samuel Wetmore f, W. W. Wetmore

And commencing on the first page, under date of 1st June, 1821, and continuing through several pages, Edward Carrington & Co., old concern, are credited with the sum of $118,987.32, for their interest in various adventures and shipments then outstanding.

The corresponding ledger is headed, “ New concern, ledger A,” and commences with the same date.

Let us return to the voyages of Mathewson.

At Lima he sold his cargo of arms, and was detained there nearly ten months waiting for payment from the Peruvian government. . r • +

In June, 1822, having chartered the Mercury, at Lima, to a person by the name of Rodolpho, he sailed with the procee s of the arras for Gibraltar, by way of Rio de Janeiro, an arrived at Gibraltar in November, 1822.

JANUARY TEEM. 1 8 48. 127

Mathewson Clarke.

In December, 1822, he sailed from Gibraltar, on a trading and freighting voyage, with freight and merchandise for the joint account of the owners.

Arrived at Rio, February, 1823.

Sailed from Rio, February, 1823.

Arrived at Valparaiso, April, 1823.

Arrived at Callao, July 1, 1823.

Left Callao, September, 1823.

Arrived at Arica, October, 1823.

Left Arica for Callao, October 25, 1823.

Arrived at Callao, December, 1823.

Sailed from Callao for Canton, January 1, 1824.

Arrived at Canton, April 10, 1824.

Left Canton for South America, July 11, 1824.

* Arrived at Monterey, October 25, 1824. rsld Left Monterey for Mazatlan, January 1, 1825. L

Arrived at Mazatlan, January 21, 1825.

Left Mazatlan for Lima, March 20,1825. Arrived at Guay-

aquil, June 3,1825, where the ship, being injured in a gale and

decayed by age, was condemned and sold.

On the 12th of September, 1825, Mathewson embarked at

Guayaquil with goods and money for Lima, in the steamboat

Tilica, which was blown up and destroyed on the passage.

In November, 1825, being at Lima, Mathewson chartered

three-fourths of the ship Superior. He claimed to do this upon

his sole responsibility and risk, and therefore to be entitled to

all the profits, allowing to Butler, Carrington & Co. only the

interest upon such portion of the partnership funds as were

invested in the adventure.

In November, 1825, he sailed from Lima to Canton, where

he arrived in March, 1826. Leaving there in June, he returned

to Valparaiso, where he arrived in October, and consigned all

his property, individual as well as joint, to Alsop, Wetmore &

Uo., who sold it at a large profit.

In June, 1827, he arrived in Providence, having been absent

nearly seven years.

uring all these voyages, Mathewson claimed to have

Reived sums of money for himself upon various accounts; dpC]HSJ)resents a.nd gratuities from the persons with whom he a d ’ Tl 0?1 Spaniai'ds for assisting in concealing their money; tar^a.’ a man named Martinez, to be invested in mili, k f°r him at Gibraltar, but who could never after-of th8' >e ^Oun(^ or heard of; from passengers for taking care in„ .money; presents from several persons for transport-all tlF6016.0111 sh°re without full duties; and profits upon ese sums, invested upon his own account in articles of

Mathewson v. Clarke.

trade sold and reinvested from time to time, paying freight for the same.

Tn 1830, Willard W. Wetmore, of New Haven, in Connecticut, filed a bill on the equity side of the Circuit Court of the United States for the District of Rhode Island against Mathewson, claiming to have been admitted by Edward Carrington & Co. as a member of their firm in June, 1821, and calling upon Mathewson to render an account of his agency as master and supercargo of the ship Mercury, on a voyage by him prosecuted before he became part owner of said ship ; and of his agency as master, supercargo, and part owner of said ship and her cargo after he became a part owner; and also of his employment of the funds of the owners of the Mercury, after her con*1demnation and sale, in the ship Superior, three fourths -I of which he *chartered at Lima in November, 1825. The bill also called for a discovery of all his transactions during the adventures.

This bill was afterwards amended by the insertion of the following clause after the claim to have been admitted as a partner in June, 1821, viz.:—“ (amendment—and then and there became the assignee and purchaser of one fourth of nine twentieth parts of said ship Mercury and her cargo and of one fourth of nine twentieth parts of all the rights of all the rights of said Edward Carrington & Co. in and to said contract with the said Mathewson, and, as such, entitled to a discovery and relief against the said Mathewson).” .

In September, 1830, Mathewson filed his answer, to which exceptions were taken, and in February, 1831, filed a further answer. In these answers he denied that the. complainant ever was a partner in the house of Edward Carrington & Co., or that he ever had any interest in the ship Mercury and cargo, or in the concerns of said adventure. The answers then went into a minute detail of all the transactions which had occuirec during all these voyages, and Jiad annexed to them a nun die and seven accounts with different persons, explaining the s ipments, sales, freight, purchases, remittances, &c., &c.

At November term, 1831, the cause was referred to Samue Eddy, as master in chancery, “to take and state an account between the complainant and the defendant, Henry a ew son, touching and concerning the concerns and business o e partnership subsisting between the parties in said cause, ana all the other matters and things charged m said bill ol com-

At June term, 1832, Samuel Eddy, Richard K. and John H. Ormsbee were appointed masters under the aoov« interlocutory decree.

JANUARY TERM, 1 848. 129

Mathewson v. Clarke.

In 1834, whilst the cause was pending before the masters, Wetmore, the complainant, died, and letters of administration upon his estate were granted to John H. Clarke, a citizen of Rhode Island, the laws of that state not permitting a person residing out of the state to become the administrator of a citizen thereof. Clarke, the appellee in the case now before the court, filed a bill of revivor. Mathewson appeared, and moved to dismiss the suit on the ground of want of jurisdiction, inasmuch as the administrator and respondent were citizens of the same state. The Circuit Court dismissed the bill; but the cause being brought up to the Supreme Court, this judgment was reversed, and the cause remanded for further proceedings. The report of this case will be found in 12 Pet., 164.

In January, 1839, Charles F. Tillinghast was appointed a third master, in the place of Samuel Eddy, to act in conjunction with the other two.

*In November, 1840, the masters made a very elaborate qn report to the court, accompanied by numerous deposi- t tions, in which report they found a balance due from Mathewson to the administrator of $8,098.52. To this report Mathewson filed twenty-six exceptions.

At June term, 1841, the master’s report was referred back to the same masters, to re-examine and review and reconsider the same, with liberty to either party to introduce further evidence ; the plaintiff to have leave to amend his bill, and the defendant to file his answer to the amendment within twenty days. Whether or not it was at this stage of the proceedings that the plaintiff amended his bill by inserting the part included within brackets, as set forth in the preceding part of this statement, the record does not show. But on the 9th of September, 1841, Mathewson filed a further answer, denying that Wetmore was or ever had been a copartner in the firm of Edward Carrington & Co.; denying that he, Wetmore, had ever asked an account from the defendant previously to filing the bill, and denying that Wetmore had ever been admitted by the defendant as a co-partner in said ships and adventures in any manner whatever.

At November term, 1841, the masters made their second i eport, finding a balance due by Mathewson to Clarke, as administrator, of $8,568.52. This report was accompanied by a great mass of additional evidence. To this report Mathewson filed twenty-four exceptions.

At the same term, viz., November, 1841, the court ordered his report of the masters, so far as respected the matters in ie sixteenth exception, to be referred back to them for further inquiry.

Mathewson v. Clarke.

In conformity with this order, the masters filed a third report correcting the preceding one by making an additional allowance, and reporting the entire balance due by Mathewson to be S8,685.66y2g-.

At June term, 1842, Mathewson filed six exceptions to this third report.

At November term, 1842, the following decree was made by the Circuit Court, viz.:—

“ This cause came on to be heard upon the report of the masters made in this cause at the November term, A. d. 1840, of this court, and upon the exceptions filed thereto; and upon the report of the masters made in this cause at the November term, A. D. 1841, of this court, and the exceptions filed thereto; and upon the masters’ report in this cause, filed in the clerk’s office of this court on the 11th day of April, A. D. 1842, and the exceptions filed thereto, and counsel being heard thereon:

q-| *“ In consideration whereof, it is ordered, adjudged,