Franklin County NcArchives Court.....Pugh, V. Maer, Murfree & Burges 1826
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:33 pm

Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

FRANCIS PUGH v. MAER, MURFREE AND BURGES. 

From Franklin.

An injunction granted upon the payment of the money recovered at law, into the 
office of the master, will not be dissolved, simply because obtained more than 
four months after the rendition of the judgment at law. The object of the art 
of 1800 on the subject of obtaining injunctions was to prevent delay and 
hazard to creditors, and this is accomplished by the terms imposed.

The bill alleged that the complainant, in the spring of 1819, contracted with 
the defendant Maer, for the purchase of fish, without specifying the quantity, 
(363) though complainant was to take as many as said Maer would deliver at the 
following prices, to-wit: $4 per barrel for trimmed herrings, $6 for shad, and 
the same price for rock; that a few days afterwards, one Minor, the agent of 
Maer, called on the complainants, and presented an account, in which were 
charged 168 barrels of herrings, 77 barrels of shad, and 7 barrels of rock, 
which, at the prices aforesaid, amounted to $1,176; that the complainant did 
then give his bond for said sum, payable to the defendant Maer, three months 
after the date thereof; that he did so at the request of said agent of Maer 
when the complainant did not know whether the fish had been delivered or not, 
for there were boats on the river in which possibly the fish might have been 
taken, and complainant therefore took it for granted that all was right; that 
the said bond was given on the 15th May, 1819, when in fact, the fish had not 
been delivered, and that a few days after, upon the application of 
complainant's agent, he was unable to obtain other or more fish than about 178 
barrels of herrings, 20 barrels of shad and 4 barrels of rock, which, 
according to the prices agreed on as aforesaid amounted to $856. The bill 
further alleged that said fish were shipped to Halifax, and consigned to 
Messrs. J. & B. F. Halsey, merchants, for sale; and upon examination of them 
by said gentlemen, it was found that at least one third were spoiled and 
rotten; that the complainant had never seen the defendant Maer since he 
ascertained this defect in the fish, though at an early opportunity, he 
informed him of the deficiency in quantity. The bill then alleged, further, 
that Meter endorsed the bond to the defendant W. H. Murfree, after it fell 
due, to-wit, on the 1st October, 1819, and that said Murfree endorsed the same 
a few days afterwards, to-wit, 10th October, 1818, to the other defendant 
Thomas Burges; that Burges had sued the complainant in the County Court of 
Franklin county, and obtained judgment; that from this judgment, the 
complainant appealed to the Superior Court of said county, at the Fall Term, 
1826, of said Court, and (364) prayed for an injunction against all of said 
judgment at law, except $571 66, and prayed also for general relief.

The fiat for the injunction was made 15th 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 pretence 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 
Barges of it, to whom he assigned the bond for valuable consideration on 10th 
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 (365) the complainant to 
the captain of the boat employed by the complainant, which boat's crew 
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 was 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 Wm. 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, &c.

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.

Badger & Haywood, for the defendants, contend-(366)ed, that the fact of the 
delivery of the fish being made clear by the proofs, the only remaining ground 
of complaint in the bill was the bad quality of the fish, which even if true, 
furnishes to this Court no ground of jurisdiction, as the complainants had 
adquate relief at law for the fraud; and that more especially as respects the 
defendants, Murfree and Burges, who are indorsers without notice. They also 
argued on the facts, and contended, that though it was clearly shown that 
complainant had spoiled fish in the year 1819, there was no evidence to show 
they were the same which liner delivered to him. On the contrary, the 
depositions taken by Maer, showed that the fish which he delivered to 
complainant were sound and well put up.

Taylor, C. J.—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 
unsaleable.

That the number of barrels stipulated for was delivered to the complainant, 
seems to be placed beyond all doubt by the depositions of Hussy & 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 sixty-nine barrels to Cedar Landing, the 
complainant declined receiving them, he alone must be responsible for the 
loss; for the defendant could no nothing more to make the delivery complete.

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, was unmerchantable, and that of these, 
some were marked with black paint; but whether these were the identical 
barrels which were received (367) from Maer, does not appear, though those 
also were marked with black paint. But 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 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, is well known to be the most frequent cause of such fish 
becoming spoiled, and this may have happened in the shipping and stowing.

Ou 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 anymore 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.

Upon the motion to dismiss, on the ground of the (368) injunction being issued 
more than five months after the judgment, though an option 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 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.

Approved. Smith v. McLeod, 38 N. C., 390.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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