Benson v. Ketchum

Le Grand, C. J., delivered the opinion of this court. This is an appeal from a specific action of the Circuit court for Baltimore city. On the 27th day of March 1857, the court ³⁵² declared, in its opinion, that Hiram ICetchum was entitled “to have and recover from the defendants, Benson and Jewett, with preference and without regard to any claim or alleged right of the defendant, Tracy, one-fourth part of the net profits arising from sales of all cargoes of guano, if any such there' were, obtained b}7 the said Benson and Jewett, from the Lobos Islands, in vessels chartered, or caused to be chartered, by said Benson and Jewett, for the purposes, and within the pe-< riod set forth in their contract with the said complainant, proven under the commission in these proceedings, and marked complainant’s exhibit, No. 5, as well as one-fourth part of the net profits of the voyages of those of the said vessels, whereof the charter-parties were transferred to P. Barreda & Brother, the agents of the Peruvian government, to bring guano to the United States from the Chincha Islands, and which did actually bring such guano under such transferred charters, and earn advance freight thereupon, under such transfer, in pursuance of the agreement of said Benson with P. Barreda & Brother,proved under the commission aforesaid, and a copy whereof thereto attached, is marked complainant’s exhibit, No. 1, deducting first, however, from said proceeds of sale, if any, and said profits or earnings, all reasonable and proper expenses1 and disbursements of said Benson and Jewett,!’ &c., &c., “the alleged claim of the said defendant, Tracy, being no part of said expenses, for the purposes of said deduction.” The opinion proceeds to say, “that the fund now invested under the order of this court,” is liable to the payment of the claim of the complainant when its amount is ascertained, and directs the auditor to state an account and apply the fund agreeably to the instructions given. The fund in court arose from freights on importations of guano.

Without going into a long detail of the facts which led to the enterprise, or a full statement of the incidents which, in its various phases, characterized it, we content ourselves with an examination of the basis on which rests the claim of the complainant, and the decree of the court allowing it, and top that end subordinating, if he have any, the claim of the appellant, Tracy, to it. ³⁵³ In the argument of the cause much was said, and ably said, pro and con, in regard to the jurisdiction of a court of equity in a case like the present, We entertain no doubt that the jurisdiction is complete, and that the authorities are full up to die question, but, inasmuch as the view we have of the merits of the case makes the question of jurisdiction unimportant, we forego ail citation of cases to show it has properly attached. For, if the complainant has not made out his case, the question of jurisdiction is of no consequence. We are clearly of opinion, that he has wholly failed to prove any claim whatever to any part of the fund. His pretensions, whatever they may be, rest entirely on the paper signed by Jewett and Benson, and dated June 30th 1852, and the paper signed by the same parties, dated the 24th day of May 1853, and the schedule thereto attached.

The first of these papers recites that Benson and Jewett were doing business in the city of New York, and had caused to be chartered a number of vessels to proceed to the Islands of Lobos, in the Pacific ocean, to obtain cargoes of guano, to be disposed of as an article of commerce, and that they intended to become interested in other vessels for the same purpose during the ensuing six months. After this recital it proceeds to say that i£in consideration of valuable services rendered us (Benson and Jewett) in respect to the obtaining access to and procuring said guano by Hiram Ketchum, of the city of New York, we do hereby jointly and severally promise said Hiram Ketchum, to pay him a sum or sums of money equal to the quarter part of our net profits on each and every ship, (deducting, first, therefrom the expenses, commissions, <fcc., for doing the business,) as aforesaid chartered and hereafter to be chartered by us, or either of us, during the ensuing six months,”