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STURM v. BOKER, 150 U.S. 312 (1893)

U.S. Supreme Court

STURM v. BOKER, 150 U.S. 312 (1893)

150 U.S. 312

STURM
v.
BOKER et al.
No. 14.

November 20, 1893

[150 U.S. 312, 314]   This suit, as originally instituted, was an action at law by the appellant, in the superior court of Marion county, Ind., against the defendants, to recover the sum of $238,000, with interest thereon, for which sum, the plaintiff alleged, they were indebted to him. The defendants, being citizens of New York, removed the cause to the circuit court of the United States; and, as the claim involved various matters of account, running through a period of several years, the court, on motion of the defendants, transferred the cause to the equity docket, and required the plaintiff to reform his pleadings. In compliance with this order, the plaintiff filed his bill of complaint, setting forth various transactions involving matters of account between himself and the defendants, commencing in September, 1867, and continuing down to September, 1876. The answer of the defendants admitted many of the facts charged, and either denied others, or set up new matter in avoidance thereof.

The several items of account presented by the pleadings need not be specially mentioned, or separately considered, not is it deemed necessary, in the view we entertain of the case, to review the immense volume of testimony taken in the course of the litigation,-covering about 4,000 printed pages,-involving irreconcilable conflicts, and including much that is wholly irrelevant. The material facts are clearly established by the written agreement of the parties, and by the admissions made in the pleadings; and the controlling question of law arising thereon, and upon which the correctness of the decree dismissing the bill must be determined, is whether the court below placed the proper construction upon the original contract enterted into between the parties, under which the defendants consigned certain arms and munitions of war to the complainant, to be by him shipped to, and sold in, Mexico. That contract, after some previous verbal negotiations, was embraced in the following correspondence:

[150 U.S. 312, 315]   'Office of Hermann Boker Co., No. 50 Cliff Street. 'New York, September 18th, 1867.

Hermann Boker & Co.'

Accompanying this letter was an invoice, in form as follows:

1 12-pounder battery, brass, complete $ 9,000 1 3-rifled battery, iron, complete 8,000 ___ $17,000 [150 U.S. 312, 316]   73 cases of 20 ea. )1,470 Springfield R. 1 " 10 " ) muskets, 8.00 $11,760 74 cases, 3.50 259 ___ 12,019 1,000 r'ds fixed ammunition, 13 p., 2.00 $ 2,000 504 r'ds fixed ammunition, 24 pd., 2.00 1,008 209 boxes: 100,000 Enfield cartridges, 12.00 1,200 100 boxes: 200,00 Maynards, 20.50 4,100 ___ 8,308 200 boxes: 670 perc. shell, 3 Hotchkiss, 1.25 $ 837 50 680 time fuse, 3 Hotchkiss, 1.25 850 00 270 case shot, 3 " 1.55 428 50 180 canister, 3 " 1.00 180 00 153 boxes, painted, 1.50 229 50 27 " not painted, 1.30 35 10 ___ 2,560 60 ___ $39,887 60"

To which complainant replied:

There was another consignment, the terms of which are contained in the letters of October 24, 1867, as follows:

[150 U.S. 312, 317]   'New York, October 24th, 1867.

[Signed] Hermann Boker & Co.'

we should direct as follows:

[Signed] ' Hermann Boker & Co.'

The invoice which accompanied this last consignment is as follows:

1,000 new Springfield muskets @ $10 $10,000 50 cases @ $3.50 175 ___ $10,175"

While it is clearly established that both of these consignments were made upon the same terms and conditions, the invoices which accompanied them differed in some respects. The bill accompanying the October consignment was entirely in writing, while the invoice accompanying the September consignment was written under a printed billhead of the defendants. The printed heading was not changed, except by erasing the words, 'bought of,' and inserting in their place the words, 'Mr. H. Sturm in joint acc't with.' The words, 'Payable in gold,' appear to have been stamped on the bill, but whether this was done at the time of its delivery to the complainant, or subsequently, when the defendants regained possession of [150 U.S. 312, 319]   the bill, is a question of dispute between the parties; and under the testimony it is a matter of grave doubt whether they formed a part of the invoice bill, as originally rendered, but it is not deemed necessary to determine this controverted question of fact.

The October consignment, which was insured by the defendants themselves, and was shipped by the steamer Wilmington, reached Mexico safely, and causes no controversy between the parties except as to a portion of the proceeds arising from the sale thereof, which was received by the defendants.

The September consignment, together with similar goods of the value of $169,516, belonging to the complainant, were shipped on the schooner Keese and brig Blonde. The Blonde carried of the consigned goods, $10,560. 60, and of the complainant's goods, $17,250, while the Keese carried of the consigned goods, $29,327, and of complainant's goods, $152,266.

The goods shipped on both vessels were insured in 14 separate policies. These policies were made out in the name of Sturm, 'for account of whom it might concern.' The whole amount of insurance on the goods carried by the Blonde was $30,000, while the total insurance on the goods, individual and consigned, carried by the Keese, was $163,000. This insurance was effected through an insurance broker, who was informed that the defendants had an interest of about $40,000 in the goods to be covered by the policies, and who was directed to consult Mr. Funke, the member of defendants' firm with whom the complainant had chiefly conducted the transaction in controversy, as to how those policies should be made. This he did, and with the consent, and by the direction, of Mr. Funke, he took the whole lot of insurance together, in the name of complainant, 'for account of whom it might concern,' and appropriated for the benefit of the defendants, and handed over to them, by the instruction of the complainant and of Funke, four policies on the cargo of the Keese amounting to $55,000, issued, respectively, by the Sun, the New York, the Orient, and the Mercantile Insurance Companies, and one policy for $15,000 issued by the United States Lloyds Insurance Company on the cargo of the Blonde. These [150 U.S. 312, 320]   four policies on the Keese, together with the one on the Blonde, the insurance broker selected for the defendants at their request, as being issued by good companies, and they were delivered to the defendants about the date of their issuance.

The policies thus delivered to them, as understood by the broker who selected and turned them over to the defendants, were intended to cover their interest in the insured cargo of the Keese and Blonde. The amount of the policies so delivered to defendants was in excess of the invoice prices of the consigned goods, for the reason, as alleged, that policies covering the exact amount could not be selected, but with the understanding that the excess was to be held for account of the complainant.

The vessels carrying the cargo sailed for Mexico in September, 1867,- a few days after the insurance was effected. On the voyage the Blonde was caught in a storm, and part of her cargo was thrown overboard to save the vessel. The insured goods had to contribute to the general average the sum of $1,463.84, which was paid by the complainant, who also paid out the further sum of $672.78 for repairing part of the consigned goods, which reached Mexico in a damaged condition. Half of the amount paid on general average, and the amount paid for repairs upon the consigned goods, are the only items of account in controversy, so far as concerns the shipment made upon the Blonde, nothing having been recovered, either by complainant or defendants, upon the insurance policies taken out on the cargo which she carried. That shipment, except in respect to the items paid on general average and for repairs, may therefore be dropped out of further consideration.

The Keese, carrying $29,327 of the consigned goods, and $152,266 of complainant's individual goods, and covered by 12 policies of insurance, amounting to $163,000, was wrecked on her voyage, without fault or negligence on the part of complainant, and her cargo was totally lost.

The complainant had reached Havana, on his way to Mexico, when he learned of the loss of the Keese and her cargo, and promptly notified the defendants, by telegram, of the fact. The defendants thereupon called for and received from the com- [150 U.S. 312, 321]   plainant's agent in New York city the invoice which accompanied the consignment of September 18, 1867, for the purpose of preparing and making proof of the loss. The insurance companies refused to pay the policies, on various grounds, which need not be noticed here.

The complainant returned to New York in March, 1868, and, learning that the insurance companies contested their liability for the loss, arranged with the defendants to institute suits against the companies to recover on the policies held by them, respectively. The defendants employed Mr. Da Costa to sue upon the policies held by them, while the complainant employed Mr. Parsons to sue upon his, and the lawyers were to co-operate and assist each other in the prosecution of all the suits.

About the time this arrangement was made, the complainant opened a bank account with the defendants, and thereafter made deposits with and drew checks and drafts upon them, as his bankers, down to the latter part of 1875.

The litigation against the insurance companies continued until September 13, 1876, when the last collection upon the policies was made. During the progress of the litigation, the complainant turned over, or assigned, to the defendants such judgments as he had obtained, and such policies standing in his name as had not been reduced to judgment, as alleged, for the purpose of convenience in collection and settlement, and with the view of having the amounts collected thereon placed to his credit. The funds collected upon all the policies, amounting to about $109,000, went into the hands of the defendants. The complainant claims that his interest and that of defendants in the amounts recovered is in the ratio of $152,266 to $29,327,-that being their relative proportion in the total amount of insurance,-and that the defendants ought to account to him according to that proportion, and pay their just share of the expenses incident to the collection thereof, as well as compensate him for his services in connection with the suits. These, and other smaller items of account, constitute the matters in controversy.

While admitting the general facts in respect to the transac- [150 U.S. 312, 322]   tion, the defendants set up in their answer that by the terms of the contract the complainant became the insurer of the goods, and was bound thereby to either sell them in Mexico, and account for the proceeds, or to return them to New York free of all expense to the defendants, and that, recognizing such liability, the complainant insured all the goods, making no distinction in the manner of such insurance between his individual goods and the consigned goods, and that the policies transferred to the defendants by the complainant were transferred as collateral security for the performance of the contract, which was upon a gold valuation, and that no part of the policies was held in trust for the complainant.

On this theory, the defendants kept their account of the transaction in the name of the 'Mexican Arms Account,' in which the goods consigned were charged at the price of $39,887.60, and to this was added the premium upon gold at 45 per cent., amounting to $17,949.42; and, on the aggregate of these two sums, interest was computed from September, 1867, to May 1, 1882, amounting to $53,801.28. This account was also charged with the expenses connected with the suits on the policies turned over to them, amounting, with interest, to $16,710.72. These expenses consisted of attorneys' fees and sundry outlays for witnesses in connection with the suits. These various items were not charged or entered as debits against Sturm until 1876, when they were transferred from the Mexican arms account to his account.

The defendants' construction of the contract, and method of keeping the account, was not communicated to the complainant until some time in 1876, when he promptly denied its correctness. The court below adopted the defendants' interpretation of the contract, holding that the consigned goods were at the risk of complainant; that he was responsible for thir loss, although arising from inevitable accident, because he had undertaken to return them if not sold; and that, being so responsible, the defendants had a right to charge him with the value thereof, and treat the policies turned over to them as collateral security for this liability, and were, furthermore, entitled to charge him with the expenses of collecting such [150 U.S. 312, 323]   policies, so that the complainant was entitled to credit only for the net amounts collected thereon. For this, and the further reason, as the court assumed, that the complainant had given testimony in the insurance cases, and made admissions under oath, which were inconsistent with his present claim, and which should repel him from a court of equity, his bill was dismissed.

If, by the terms of the contract, as embodied in the letters of September 18 and October 24, 1867, the title to the goods vested in the complainant, or they were to be at his risk during their transit to Mexico, then it is conceded that upon an adjustment of the accounts between the parties on that basis, with the allowance to the defendants of a premium of 45 per cent. for gold, there is little or nothing due to the complainat, and no substantial error in the decree dismissing his bill. On the other hand, if the title to the goods delivered did not vest in the complainant under the terms of the consignment, or he was not responsible for the loss of the same by inevitable accident, then the court below was in error in dismissing his bill, and denying the account sought.

Solomon Claypool and Hohn M. Butler, for appellant.

Albert Baker, Wm. D. Guthrie, and C. A. Seward, for appellees.

[150 U.S. 312, 326]  

Mr. Justice JACKSON delivered the opinion of the court.

It is too clear for discussion, or the citation of authorities, that the contract was not a sale of the goods by the defendants to Sturm. The terms and conditions under which the goods were delivered to him import only a consignment. The words 'consign' and 'consigned,' employed in the letters, were used in their commercial sense, which meant that the property was committed or intrusted to Sturm for care or sale, and did not, by any express or fair implication, mean the sale by the one, or purchase by the other. The words, 'Mr. H. Sturm in joint account with Hermann Boker & Co.,' or 'Bought of Hermann Boker & Co., in joint account,' in the billhead, cannot be allowed to control the express written terms contained in the contract, as set forth in the letters. A printed billhead can have little or no influence in changing [150 U.S. 312, 327]   the clear and explicit language of the letters, and it in no way controls, modifies, or alters the terms of the contract. The purpose and object of the bill were to give a description and valuation of the articles to which the contract, as embraced in the letters, had reference; their description being important, if the articles had to be returned, and their price or valuation necessary, if they were sold, and profits were made for division. The contract being clearly expressed in writing, the printed billhead of the invoice can, upon no well-settled rule, control, modify, or alter it. That the invoice was not intended to have that effect is shown by the fact that the invoice of the consignment of October 24th differed in several respects from the invoice of September 18th, although the terms and conditions in respect to each consignment were the same.

In Schenck v. Saunders, 13 Gray, 37, there was a written agreement in these terms:

With each shipment of leather to Howe, Schenck, Wood & Pond sent him unsigned bills, like those in the present case, in this form:

[150 U.S. 312, 328]   'Manufacturers and Commission Merchants,

In a contest as to the title of these goods (boots) between Schenck, Wood & Pond and an assignee of Howe, it was contended, among other things, that the invoices showed that the transaction was a sale to Howe, and the heading of the bills was relied upon to give such construction to the contract. The supreme court of Massachusetts, speaking by Bigelow, J., held that the transaction was not a sale, and that 'the bills of parceis which were sent from time to time with the merchandise were susceptible of explanation by parol evidence, and did not change the terms of the written agreement under which the property was sent to Howe. They were sent only as memoranda of the amount and value of the merchandise transmitted. Hazard v. Loring, 10 Cush. 267.'

Was the contract, as claimed by counsel for the defendants, a contract of 'sale or return?' We think not. The class of contracts known as contracts of 'sale or return' exist where the privilege of purchase or return is not dependent upon the character or quality of the property sold, but rests entirely upon the option of the purchaser to retain or return. In this class of cases the title passes to the purchaser, subject to his option to return the property within a time specified, or a reasonable time; and if before the expiration of such time, or the exercise of the option given, the property is destroyed, [150 U.S. 312, 329]   even by inevitable accident, the buyer is responsible for the price.

The true distinction is pointed out by Wells, J., in Hunt v. Wyman, 100 Mass. 200, as follows: 'An option to purchase if he liked is essentially different from an option to return a purchase if he should not like. In one case, the title will not pass until the option is determined. In the other, the property passes at once, subject to the right to rescind and return.'

The cases cited and relied on by the defendants (Moss v. Sweet, 16 Q. B. 493, 494; Martineau v. Kitching, L. R. 7 Q. B. 436, 455; Schlesinger v. Stratton, 9 R. I. 578, 581) involved contracts of 'sale or return,' in which there was a sale followed by a destruction of the property before the option of the purchaser had expired, or had been exercised. It was properly held in these cases that the goods were at the risk of the purchaser pending the exercise of the option, and that he was responsible for the loss of the goods, or the price to be paid therefor. These authorities are not in point in the present case.

The contract under consideration did not confer upon the complainant the privilege of purchasing or returning the goods within any specified or reasonable time, for the defendants retained, by express stipulation, a right to share in the profits made on the sale of the goods in Mexico, and, if they were not sold, to have the specific goods returned to them without expense. In the letter of October 24th they specially direct that the Springfield rifles, including those covered by the consignment of September 18th as well as those covered by the consignment of October 24th, should be returned if they did not realize the prices indicated in the invoices.

The contract, in its terms and conditions, meets all the requirements of a bailment. The recognized distinction between bailment and sale is that, when the identical article is to be returned in the same or in some altered form, the contract is one of bailment, and the title to the property is not changed. On the other hand, when there is no obligation to return the specific article, and the receiver is at liberty to return another thing of value, he becomes a debtor to make the return, and [150 U.S. 312, 330]   the title to the property is changed. The transaction is a sale. This distinction or test of a bailment is recognized by this court in the case of Powder Co. v. Burkhardt, 97 U.S. 116 .

The agency to sell and return the proceeds, or the specific goods if not sold, stands upon precisely the same footing, and does not involve a change of title. An essential incident to trust property is that the trustee or bailee can never make use of it for his own benefit, nor can it be subjected by his creditors to the payment of his debts.

Testing the present case by these established principles, it admits of no question that the contract was one of bailment, and that the title to the goods, with the corresponding risk attached to ownership, remained with the defendants. Suppose a creditor of Sturm had levied upon or seized these goods after they reached his possession. It cannot be doubted that the defendants could have recovered them as their property.

That the contract between the parties in reference to the goods in question was a bailment upon the terms stated in the letters is clearly established by the authorities. Among others, see Hunt v. Wyman, 100 Mass. 198; Walker v. Butterick, 105 Mass. 237; Middleton v. Stone, 111 Pa. St. 589, 4 Atl. Rep. 523.

The complainant's common-law responsibility as bailee exempted him from liability for loss of the consigned goods, arising from inevitable accident. A bailee may, however, enlarge his legal responsibility by contract, express or fairly implied, and render himself liable for the loss or destruction of the goods committed to his care; the bailment or compensation to be received therefor being a sufficient consideration for such an undertaking.

This brings us to the question whether, by the terms and conditions of the contract, as embraced in the letter of September 18th, consigning the goods, it can be held that the complainant assumed such a risk in the present case. He assumed the expenses of transporting the goods to Mexico, the duty of selling them to the best advantage after they reached there, the [150 U.S. 312, 331]   obligation to account to the defendants for the price at which they might be sold, less one-half of the profits in excess of the invoice price; and, if not sold, he was to return the specific articles to the defendants free of expense. This agreement to return the goods in the event they should not be sold, it is urged, imposes upon him the risk of their destruction before he had an opportunity to sell or dispose of them under or in accordance with the terms of the consignment. We cannot accede to the correctness of this proposition. The destruction of the goods, without fault of negligence on his part, terminated his obligation to make either a return thereof, or pay for their loss. Such a liability could only be imposed upon him by a contract clearly expressing his assumption of the risk of destruction, or his liability for the loss.

In the case of Hunt v. Wyman, 100 Mass. 198, the bailee was to return the property (a horse) in as good condition as he received it, by a designated time. The property was so injured, without fault on his part, that it could not be returned within the time agreed upon, and no attempt was made to return it. Still, it was held that he was not responsible for the property. The court said: 'A mere failure to return the horse within the time agreed may be a brach of contract, upon which the plaintiff is entitled to an appropriate remedy, but has no such legal effect as to convert the bailment into a sale. It might be an evidence of a determination by the defendant of his option to purchase, but it would be only evidence. In this case, the accident to the horse, before an opportunity was had for trial in order to determine the option, deprives it of all force, even as evidence.'

In Walker v. Butterick, 105 Mass. 237, the following contract was presented:

[Signed] 'Alexander & Co.

[Signed] 'Walker & Co.'

It appears that, some months after the date of this contract, Alexander & Co. absconded, and one of their creditors levied upon goods which had been furnished by Walker & Co. The court held that the contract under which Walker & Co. claimed title to the goods levied upon imported a consignment of the goods for sale, and not a sale of them by Walker & Co. to Alexander & Co., so that the title remained in Walker & Co.

In Middleton v. Stone, 111 Pa. St. 589, 4 Atl. Rep. 523, A. delivered to B. two colts, under a contract that B. should safely keep and sell them, if possible, before a certain date, for A.,-he fixing a minimum price to be received by him, and in addition thereto one-half of all money obtained above that price, to the extent of $25,-and, if not sold, to return the animals in good condition. Held, that this was not a sale, but a bailment, and it was error, therefore, to overrule and offer of B. to show that the colts were sick when they were delivered to him; that one of them died; and that he then offered to return the other to A., who refused to receive it. It was held that the horses were at the risk of A.

It is next urged, on behalf of the defendants, that the taking of the insurance in the name of complainant was a recognition of his responsibility for the loss of the goods, and that the policies of insurance were turned over to them to secure this liability of the complainant. This position cannot be sustained, for the reason that defendants, through their partner, Funke, directed that all the insurance should be taken out together in the name of Sturm, and also instructed the insurance broker to select for them the policies which they wished appropriated to secure their interest. The act of taking out the insurance, in the manner in which it was done, was their act, as much as it was the act of Sturm; and the in- [150 U.S. 312, 333]   surance having been thus effected in no way tends to establish the contention that it was a recognition of Sturm's liability for the loss of the goods.

It is not material to determine whether the complainant ever indorsed and transferred these four policies to the defendants, or, if so, whether it was done at the time of their delivery, or subsequently, for no such assignment or transfer thereof was necessary to have enabled the defendants to recover on the policies for the loss of cargo, to the extent of their interest in the same; it being well setled that under a policy running to Sturm, 'for account of whom it might concern,' the defendants could show and recover their interest, in the event of loss. It was so ruled by this court in Hooper v. Robinson, 98 U.S. 528 , where it was said 'that a policy upon a cargo in the name of A., 'on account of whom it may concern,' or with other equivalent terms, will inure to the interests of the party for whom it was intended by A., provided he, at the time of effecting the insurance, had the requisite authority from such party, or the latter subsequently adopted it.'

In the present case, Sturm had the requisite authority of the defendants to make the insurance on the consigned goods, as was testified to by the insurance broker, and as shown in their letter of September 18, 1867, in which they say: 'As you have insured these goods, as well as other merchandise, we should be pleased to have the amount of $40,000 transferred to us.' It is clear that the insurance, to the extent of $40, 000, was intended to cover the interests of the defendants in the consignment of September 18, 1867; and, in the absence of any delivery or transfer of policies representing that interest, this could have been shown by them, so as to entitle them to the benefits of such insurance.

It is next urged-and the court below seems to have taken the same view of the matter-that the complainant is estopped from denying his responsibility for the loss of the goods because of alleged statements made by him as a witness in the suits upon the insurance policies. It is claimed that in those suits he testified under oath that he was the owner of the goods, and thereby precluded himself from asserting anything [150 U.S. 312, 334]   to the contrary in this case, under the wise and salutary doctrine which binds a party to his judicial declarations, and forbids him from subsequently contradicting his statements thus made. We do not controvert the soundness of this general rule, as laid down in the cases cited by the defendants. Dent v. Ferguson, 132 U.S. 50 , 10 Sup. Ct. Rep. 13; Creath's Adm'r v. Sims, 5 How. 192; Wheeler v. Sage, 1 Wall. 518; Seltz v. Unna, 6 Wall. 327; Kitchen v. Rayburn, 19 Wall. 254; Bartle v. Coleman, 4 Pet. 184; Sample v. Barnes, 14 How. 70; Hannauer v. Woodruff, 15 Wall. 439; Higgins v. McCrea, 116 U.S. 671 , 6 Sup. Ct. Rep. 557; Cragin v. Powell, 128 U.S. 691 , 9 Sup. Ct. Rep. 203; Prince Manuf'g Co. v. Prince's Metallic Paint Co ., 135 N. Y. 24, 31 N. E. Rep. 990; Stephens v. Robinson, 2 Cromp. & J. 209; Harmer v. Westmacott, 6 Sim. 284; De Metton v. De Mello, 12 East, 234; Post v. Marsh, 16 Ch. Div. 395; In re Great Berlin Steamboat Co., 26 Ch. Div. 616. But the question here is whether the statements made by the complainant in the insurance suits bring him within the operation of this wholesome rule. We think not, for it would be pressing his language too far to hold that he made any positive statement to the effect that he was the absolute owner of the goods, or that he admitted as a matter of fact, rather than of opinion, that he was responsible for their loss. What he did state, when his testimony is read as a whole, was that he was the owner on consignment, for when the direct question was put to him, 'What do you mean by being the owner for the time being?' his reply was: 'That they were delivered to me by Hermann Boker & Co. under that agreement, and I was responsible for those goods until they were returned, or until I delivered the money to them. This is what I mean.' And, in reply to another question, he stated that 'the terms on which I was the owner were expressed in the papers I furnished,' referring to the letters of September 18 and October 24, 1867. And to the further question whether he understood that those contracts made the goods his property, his answer was, 'I understood so at the time, certainly, and I believe so yet.' 1   [150 U.S. 312, 335]   This language did not mislead or induce either the defendants or the insurance companies to alter or change their posi- [150 U.S. 312, 336]   tion in any respect whatever, nor influence their conduct in any way. Both the defendants and the insurance companies had the written contracts before them, and were presumed, as a matter of law, to know their legal effect and operation. What the complainant said in his testimony was a statement of opinion upon a question of law, where the facts were equally well known to both parties. Such statements of opinion do not operate as an estoppel. If he had said, in express terms, that by that contract he was responsible for the loss, it would have been, under the circumstances, only the expression of an opinion as to the law of the contract, and not a declaration or admission of a fact, such as would estop him from subsequently taking a different position as to the true interpretation of the written instrument.

In Brant v. Iron Co., 93 U.S. 326 , it was said: 'Where the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there can be no equitable estoppel.'

So in Brewster v. Striker, 2 N. Y. 19, and Norton v. Coons, 6 N. Y. 33, and approved in Chatfield v. Simonson, 92 N. Y. 218, where it was ruled 'that the assertion of a legal conclusion, where the facts were all stated, did not operate as an estoppel upon the party making such assertion.'

In Bigelow, Estop. (5th Ed.) 2, p. 573, it is properly said: 'The rule we apprehend to be this: That where the statement or conduct is not resolvable into a statement of fact, as distinguished from a statement of opinion or of law, and does not amount to a contract, the party making it is not bound, unless he was guilty of clear moral fraud, or unless he stood in a relation of confidence towards him to whom it was made. If the statement, not being contracted to be true, is understood to be opinion, or a conclusion of law, from a com- [150 U.S. 312, 337]   parison of facts, propositions, or the like, and a fortiori if it is the declaration of a supposed rule of law, the parties may, with the qualification stated in the last sentence, allege its incorrectness.' And again, (section 2, p. 571:) 'A representation in pais, in writing, when not a part of a deed, or made the subject of a contract, though on oath, is no more efficacious, so far as the question of estoppel is concerned, than a verbal statement.'

These authorities lay down the correct rule to be applied in the present case, and, tested by the principle they announce, the complainant is not estopped from claiming his rights under a proper construction of the contract, notwithstanding what he said in the insurance cases.

The grounds of estoppel against the complainant are not nearly so strong as they are against the defendants. It is clearly shown that Funke, a member of defendants' firm, in March, 1876, on the trial of the suit against the New York Mutual Insurance Company upon one of the policies in question, distinctly swore that the complainant was indebted to them only to the extent of $32,000, and that they had no security whatever for the payment of that indebtedness. In his testimony in the present case, he fails to explain that sworn statement. That sworn statement is inconsistent with the claim now made,-that the complainant was at that time indebted to the defendants to the amount of over $140,000,-and it is furthermore inconsistent with the position now taken,-that they held all the insurance policies, amounting to $163,000, as collateral security for complainant's indebtedness. These sworn statements of Funke related to facts which were as well, if not better, known to the witness at that time than in 1882, and subsequently, when he testified in this case. Those statements are unexplained, and if they do not operate as an estoppel upon the defendants from now claiming a larger indebtedness than was then stated, and from claiming that all the policies were turned over to them as collateral security, they certainly cast suspicion and discredit upon their testimony in the present case. The question of estoppel need not be further discussed.

Upon the written contract, and all the relevant and compe- [150 U.S. 312, 338]   tent evidence connected therewith, we are of opinion that the construction which the lower court placed upon the contract was incorrect; that the complainant was not an insurer of the goods; that he was not responsible for their loss; that the policy of $15,000 on the cargo of the Blonde, turned over to the defendants, was intended to cover their interest in that consignment, amounting to $10,560, and that the four policies on the Keese's cargo, delivered to them, were to protect their interest in the consigned goods carried by that vessel, to the extent of $29,327; that they held these policies to pay that amount in case of loss, and that the surplus, if any, was to be held in trust for the complainant. But if there were any doubt on this question Exhibits H and F, which were produced by the complainant during the progress of the suit, place the matter beyond all dispute. Said exhibits are as follows:

[150 U.S. 312, 339]   Memorandum.

[Seal.]

On Keese, the Orient Mutual, $15,000, and New York Mutual, $12,500; Sun Mutual, $12,500, and Mercantile Mutual, $15,000.

On Blonde, the United States Lloyds policy for $15,000, which we have taken as ours. Leaving a balance for us to select on Keese of $25,000, of which we have so far selected only the Orient, and, as we cannot divide the policies to suit us, we hereby agree this day to keep all the four policies on the Keese for the joint account of ourselves and General H. Sturm, and, in case of any accident or loss, we will collect the amount of the policies from the companies, and pay over to General Sturm his share, viz. 30-55 of the whole amount collected; and we also agree to pay the premium notes for our share of the policies, and to stand all loss, if any should happen to our goods. General Sturm is to bear the shipping expenses, only, and in no event shall he be held responsible for any accident or damage, or any act of the Mexican government; but in case he cannot sell the arms at the price agreed upon, and has to return them, he shall insure them for our account.

Hermann Boker & Co.'

Some reliance is placed upon what is called a statement of his account made to Sturm in Indianapolis in May, 1875, by Boker, one of defendants' firm. This account was clearly a partial one. It was made up by Rabing, the bookkeeper of defendants,-not from their books, but from memoranda furnished him by Boker,-but from what source he obtained it does not appear. The correctness of the account-shown by loose slips of paper and imperfect memoranda-was disputed by Sturm, and it is now conceded by defendants that it was not a full and accurate statement. Sturm claimed that they had not given him credit for money collected on his insurance policies, and that when they were all included the defendants would be indebted to him. The circumstances attending the presentation of this account, made at a time when Sturm was contemplating going into bankruptcy, tends strongly to show that the defendants were endeavoring to induce him to admit a much larger indebtedness to them than really existed, in order to give them an advantage in the event of bankruptcy. But, however that may be, there was no stated account accepted or acquiesced in by Sturm, such as would either conclude or require him to surcharge and falsify the same.

We have not deemed it necessary to determine whether the September invoice had on it the printed words 'Payable in Gold' when it was delivered. Those words form no part of [150 U.S. 312, 341]   the contract, as embodied in the letter of September 18, 1867, and complainant's acceptance thereof. They do not impose upon the complainant the liability to account for the value of the goods, in gold, in the event of loss by inevitable accident; and not being responsible for the goods, nor liable for the loss thereof, neither he, nor the proceeds of his insurance policies, can properly be subjected to the burden of making good either the defendants' loss, or paying such losses in gold. The insurance, as defendants admit, was not on a gold basis, but only for the invoice price of the goods in currency. The complainant was not an insurer, nor in any way liable for even the currency value of the consigned goods, and it would be a perversion of the contract, and inequitable, to require either him or his policies to compensate the defendants for their loss in gold.

We think the complainant has failed to make out a claim to compensation for his services in attending to the suits against the insurance companies.

In our opinion the complainant is entitled to the account he seeks by his bill, in which he should be credited with the amounts received by the defendants on the insurance policies in the proportion of $152,266 to $29, 327, that being their relative interest in the cargo of the Keese; that the expenses of the litigation, including counsel fees, should be divided between the parties on the same basis; that the complainant is entitled to one-half of the sum of $1,463.84, paid by way of general average on the goods shipped on the Blonde; to the further sum of $672.68, for repairing the goods which reached Mexico in a damaged condition; and for whatever defendants realized on life insurance policies of the complainant, and on the notes arising from the sale of the Indiana polis lots, if the amount so realized did not have to be repaid in taking up the notes; and with such other amounts as he may have placed in the hands of the defendants, either in the bank account or in the transaction connected with the insurance policies; and the defendants will be credited with all the amounts paid to and for the account of complainant not covered by the foregoing rulings. The account will be stated up to the filing of the bill, and any [150 U.S. 312, 342]   balance shown in favor of either side will bear interest from that date.

The decree is reversed, and the cause is remanded to the court below, to be proceeded with in conformity with this opinion.

So ordered.

Footnotes

[ Footnote 1 ] In the trial of the Great Western Case, Sturm's complaint therein was placed in his hands, and he was asked whether he knew it contained this

clause, 'that at the time said policy was so effected, and all the time down to the said loss, the plaintiff was the owner of said cargo,' and he answered, 'Yes, sir.' 'Question. Was that true? 'Answer. Yes, sir. 'Q. Was it true in respect to the goods consigned to you by H. B. & Co.?

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