Thomas et al. v. Osborn.
his credit. For the heading of the invoice of the cargo purchased upon that occasion, which I have already set forth in full, expressly required that the sales and returns should be made by the consignee to Loring & Co. And Leach admits that the cargo was to be insured, and the loss, if any, to be paid to Loring & Co. And from his own testimony, as well as the invoice, it is evident that it was understood by the parties that the proceeds of the cargo were to be remitted from Panama by the consignees to Loring & Co. For he is asked by the libellants, “Was there not an understanding that the proceeds should be remitted by your consignees to Loring & Co.?” and he answers, “I don’t know that there was.” But he is again pressed by the inquiry, “Will you reflect and see if you cannot answer that question directly that there was?” and he then answers, “There was no such understanding; it might be understood; there was nothing promised.” I give the words of the witness; but I cannot be convinced by this nice casuistry of Captain Leach, in distinguishing an understanding between the parties from a promise, that his credit was still good with Loring & Co., notwithstanding the evidence to the contrary in the agreement in the heading of the invoice, and in the admitted agreement in relation to the insurance. It certainly does not prove it so high as to create a presumption that all other securities were waived, from their confidence in the personal responsibility of Leach; nor did his subsequent conduct show that he merited even the confidence they did repose in him. For he went to Panama and procured advances to himself, on account of the cargo, to the amount of $2,100, and authorized large disbursements to be made by his consignee to his agent, Easton, for the use of the Laura, and proceeds to Massachusetts without returning to Valparaiso; and after he came home, he drew on his consignees for $375 more to pay Weston’s expenses, who was sent out by the owners, and during all that time rendered no account to Loring & Co., and left them under the impression that the proceeds would in good time be remitted to them. It seems they were not aware of the distinction which Leach took between the mutual understanding between them and an actual and formal promise.
The point, therefore, taken by the owners, that the repairs and supplies were furnished on the personal credit of Leach, cannot, in my judgment, be maintained. And, undoubtedly, the justice of the case is clearly with the libellants. The captain was without funds, and his owners had none in Valparaiso; and the barque must have remained in port a wasting hulk if the means had not been furnished by Loring & Co., which en-
