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Art. X.-THIE MERCHANT PATRON OF THE FINE ARTS. In November, 1844, the Hon. Thomas G. Cary, an eminent merchant of Boston, delivered a lecture before the Mercantile Library Association of that city, in which, besides inquiring into the causes of frequent failure among men of business, he endeavored to show that the encouragement of the fine arts, in a republic, depended on the security of property. It is not our purpose, at this time, to review the lecture of Mr. Cary, but merely to make a few extracts, principally referring to a merchant of New York, who has done something for the fine arts in this country, and who be. queathed a beautiful example in his life, for the imitation of the Man of Trade, and, indeed, all who grow up under a government like ours.
“Instances can be adduced to show that, even in countries where the arts have been brought to the highest degree of perfection, genius has been compelled to struggle with harassing want; and others can be found which indicate that, even among us, the taste, the liberality, and the ability that are necessary for the reward of the artist, have already made their appearance, and given promise of vigorous growth. One instance on each side will serve as an illustration.
“ It is said that the celebrated painter, Coreggio, in Italy, received but forty ducats for the picture of Night, (or Dawn,) which forms, now, one of the chief attractions in the great gallery at Dresden; and that such was his disappointment and grief at the inadequate price, and the inconvenient mode of payment which he was forced to accept for another of his greatest productions, that he died, shortly afterward, in misery.
“ About twelve years since, a favorite American artist who was then pursuing his studies in Italy, received from Mr. Luman Reed, a grocer in New York, the dimensions of a room in the house which he was then building for himself, with a request that he would prepare to fill the els with such paintings of his own as he should design, for the sum of three thousand dollars. The painter was just then perplexed by accounts of pressing want from those who were dependent upon him at home, and had found himself obliged, with deep regret, to prepare for an immediate return to this country. The magnitude of the commission which he then received, and the liberality of the terms, at once relieved him from difficulty, and enabled him to remain in Italy as long as he had intended, for the purpose of studying the models of the great masters there; and when the work which he was then desired to undertake, was completed, the three thousand dollars had been extended to five thousand. Here, then, was an instance of such support to the fine arts as they are likely to receive in the United States.
“It is very probable that for the same sum of money, pictures of greater merit, and certainly of more celebrity, might have been purchased from the works of the old masters. But here was vital succor to the living artist, encouragement to continue his efforts, when it was most acceptable. It was such aid as would have gladdened the heart of Coreggio; perhaps have prolonged his life, and enlarged the number of the treasures which he left to the world. It was an act corresponding to what is called patronage in other countries; and yet it was not patronage. It was free from all claim of the irksome deference that is usually felt to be due to the patron. It was performed in the spirit which cordially acknowledges a full equivalent, in the work, for the price paid; and which leaves the spirit of the artist unshackled by dependence. It was the act, too, of one whose life, as I know, from personal acquaintance and observation, was in keeping with the spirit of it ; and I avail myself of this opportunity to bear testimony to his worth, and to present his character for imitation.
“Mr. Reed was a native of Connecticut, but engaged in business in New York. By industry, perseverance, and steady adherence to sound principles of action, he became one of the foremost in the highly respectable class to which he belonged. He grew gradually rich; and was, at length, enabled to build for himself an expensive house in an eligible situation, and to indulge the taste for beauty that
seemned natural to him, in ornamenting it. His interest in the arts, as it grew, was accompanied by sympathy for the artist. I had known him well, myself, during a residence of ten years in New York, and was surprised one day by a visit from him in Boston. After a cordial greeting, I inquired after the state of the tea-market, which had been the great field of his success. He told me, with a smile, that, although he was as active there as ever, he had come on other matters; and that he wanted my aid to procure for a young artist whom he wished to encourage, permission to copy, at the Athenæum, the original sketch by Stuart of the head of Washington, which is preserved by the trustees with particular care; meaning, he said, to present the copy to a public society in New York. The permission was readily obtained, and I have since understood that, after that was arranged, he went into the tea-market here with sufficient advantage to provide a liberal compensation for the young artist while he was at work; thus making trade subservient to taste. He died shortly afterward, in the prime of life, leaving a collection of paintings, engravings, shells, and other objects of beauty and interest, altogether so valuable, that it is proposed to make them the commencement of a public gallery in New York; and leaving, too, an establishment in business conducted on principles so secure that it has been a school of industrious success to younger men, who owe their prosperity mainly to him,
“We have much to do, no doubt, before we can raise the standards of taste among us to the highest elevation ; but, whatever may be the comparative merit of the collection that I speak of, it serves as proof of the point that we wish to establish. As the powers of the artist are confined to no one class, but are occasionally developed in all, so the love of beauty in color, in proportion, and expression, exists everywhere among us, and seeks gratification as the means of indulging it are found. Its strength will depend on the preference that we may cherish for objects really deserving of admiration, over the indulgences of coarse and sordid inclinations. But its culture has commenced, and with good promise. Beside the readiness with which the works of Allston and other artists have been purchased, we have recently had additional evidence of this in our own community.
“Owing to the growth of Boston, and change of character in some parts of it from that of quiet residence to the bustle of business, it lately became necessary to raise $75,000, in order to remove the Athenæum from where it is, to a more eligible situation. As the capitalists among us had made large donations to the institution heretofore, it was thought but just to make an appeal to the public now, and ascertain whether a spirit exists, in the community at large, to support such an institution; and it was decided that no further donations should be asked for, but that shares should be offered for sale. They have all been taken. The money was provided with ease, by the subscriptions of various classes, comprising the mechanic as well as the man of fortune; and an intimation is given that more can be had, if desired, from those who are willing to receive payment for what they advance, in the right of access to books, and to a gallery of paintings and statuary.
“ The fine arts, then, are likely to receive such support among us, that no egregious failure in respect to them will be eventually charged upon us, if we are likely to have the means to encourage them.”
The address of Mr. Cary, from which the foregoing paragraphs are extracted, is replete with interesting matter of a commercial character, and we intend to embody in a future paper that portion of it which refers to the causes of frequent failure among men of business. The author, a gentleman of liberal education, has devoted a large portion of his life to the multifarious pursuits of commerce. Soon after leaving the halls of Harvard University, at Cambridge, he became a successful merchant, and was, in the palmy days of the Bank of the United States, a director in that institution. He is, at the present time, a director in the Franklin Bank in Boston, the treasurer of the Hamilton Manufacturing Company at Lowell, and is, we believe, largely interested in its manufactures. VOL. XV.-N0. I.
MERCANTILE LAW CASES.
NOTES-ENDORSERS-POWER OF ATTORNEY. In the Superior Court, Judge Vanderpoel presiding, New York, March 11th, 1845.—Charles A. Jackson vs. John Q. Aymar and Philip Embury, executors of Pexel Fowler.
This was an action on a note endorsed in the name of Pexel Fowler by Jacob D. Fowler, in the year 1836. It appeared that in the year 1836, Pexel Fowler gave a power of attorney to J. D. Fowler, to endorse his name on notes, which power of attorney was recorded in the North River Bank, and plaintiff now sought to recover on the ground that under such power of attorney Pexel Fowler was liable for the notes endorsed by J. D. Fowler. For the defence it was shown that the goods purchased by J. D. Fowler, and for which that note was given, were not purchased for Pexel Fowler, but for J. D. Fowler himself, and that the power of attorney given him by Pexel Fowler, only contemplated that he might endorse notes for transactions in which Pexel Fowler was interested. In reply to this it was shown that J. D. Fowler was in the habit of endorsing notes to a large amount, for transactions in which Pexel Fowler had no interest whatever, and that Pexel Fowler knew of such endorsements and ratified them, or at least some of them. In answer to this it was shown by defendant that within a period of about eighteen months the house of Fowler, Gordon & Co. put in circulation, in different banks of this city, notes endorsed by J. D. Fowler in the name of Pexel Fowler, to the amount of $640,000; and the defendant relied on this fact as showing that Pexel Fowler must have been ignorant of the extent to which his name was endorsed by J. D. Fowler; as, had he known it, it was not supposed he would have permitted or approved it.
The Court charged the jury that under a decision of the Court of Errors a written power of attorney was only intended to apply to Pexel Fowler's own business, and could not authorize endorsements for purchases except such as were made for Pexel Fowler, and, under that decision, unless the plaintiff proved that the purchase was made for the benefit of Pexel Fowler, it did not come within the written power of attorney. But in this case the plaintiff did not rest his claim on the written power, but alleges that J. D. Fowler had an unlimited license from Pexel Fowler to endorse notes in his name, and that every person dealing with him had a right to suppose 60. It is true that although the written power to endorse would not authorize J. D. Fowler to do so only to a certain extent, yet if he was in the habit
of using the name of Pexel Fowler, with the knowledge of the latter, the plaintiff has a right to recover, although the goods were sold for J. D. Fowler's own benefit. Verdict for plaintiff, $3,869 06, being the amount claimed. For plaintiff, Messrs. Sandford and Cutting. For defence, Mr. Dillon.
ACTION OF ASSUMPSITCOMMISSION MERCHANTS. In the Court of Common Pleas, Boston, Mass., before Judge Ward. Kentgen vs. Jaszynsky.
This was an action of assumpsit upon an account annexed, containing charges for the proceeds of goods consigned by the plaintiff to the defendant, a commission merchant in Boston; the plaintiff claiming a balance of about $175. The defendant filed an account in offset, claiming a balance due him of about $45; the account including charges for commissions on goods consigned to the defendant for sale, and returned unsold to the plaintiff at his request,_also charges for insurance on goods consigned; and evidence was offered to prove the custom of merchants to make such charges.
The mutual accounts of the parties, containing several items in dispute, were referred to N. C. Betton, Esq., as Auditor, who made his report in favor of the defendant for the full amount claimed by him in offset.
The plaintiff thereupon conceded all the items as allowed in the Auditor's report, except a charge for a note of Homer & Leighton for about $100, which was proved to have been given to the plaintiff by them for goods sold them by the plaintiff from Jaszynsky's store. The defendant offered evidence to show that the note was given for the proceeds of goods for which he had accounted in his account current, and that he was therefore entitled to charge him with the note.
Judge Ward ruled that the Auditor's report was prima facie evidence of a strong character in favor of the defendant, and that it was conclusive unless very strong evidence were adduced to prove its incorrectness.
The jury found a verdict for the defendant for the full amount claimed by him. ACTION OF ASSUMPSIT ON A MEMORANDUM CHECK--MERCHANTABLE GOODS.
In the Court of Common Pleas, (Boston, Massachusetts,) John B. Kettell, et al., ts. Lewis Jones, et al.
This was an action of assumpsit against the defendants, who were copartners, founded upon a memorandum check, dated October 8, 1844, whereby the defendants acknowledged that they had borrowed and received of one Samuel B. Deane, a certain sum of money, which they promised to pay on demand.
It was contended by the defendants' counsel, that the plaintiffs could not sue in their own name on such a memorandum, as it was a chose in action not negotiable—but the Court, on this point, for the purposes of trial, ruled that, if Deane assigned it to the plaintiffs for a valuable consideration, and the defendants had afterwards made an express promise to pay it to them, the action could not be sustained.
There was a second count in the suit-under which the plaintiff's alleged and endeavored to prove—that on the day of the date of the memorandum, said Deane agreed to purchase of the plaintiffs an entire cargo of salt, at a full price, and as agents of Gilmore & Pratt, of Concord, N. H.,
and to be delivered at the depot in Boston most convenient for transporting it to Concord. And that the plaintiff required some guarantee or security from Deane that Gilmore & Pratt would ratify his purchase. That thereupon he informed the defendants (who were connections of his) of this requirement, and obtained this check and delivered it to the plaintiffs, to be held and used by them as such security—and that Gilmore & Pratt refused to ratify the contracts of sale, &c.—but it did not appear that this sale was in writing, although the amount of the sale greatly exceeded $50 value. Whereupon the defendants' counsel contended
1st. That if this case was the origin of the check, and it was not delivered in part payment for the cargo, it came within the statute of frauds, and the contract of sale was void, and this action fell with it.
2d. That this check not being ambiguous, was a promise to Deane only, and that it was not competent for the plaintiffs to substitute either an implied promise to themselves, or a new and other contract therefor. Nor could the defendants be held as guarantors of a sale of salt to Deane ; for that would be an agreement to pay the debt of another ; or, to be responsible for the default of another, which would also be within the statute of frauds.
3d. That if Deane did in fact agree to buy the cargo of salt, it was a purchase, upon the plaintiff's representations of its quality, and without actual inspection, and before the hatches of the ship had been opened ; and the salt proved to be different from what was contracted for. That, as a matter of law, if nothing had been represented as to its quality, the plaintiffs who were to have a full price, were bound to deliver a merchantable or fair article; and as they knew for whom it was bought, and where it was to go, and the probable purposes for which it was to be used—there was an implicit warranty that it was reasonably fit for such place and purposes ; and as it proved to be a poorer article and unfit for such purpose-Deane had a right to rescind the contract, which he did the moment he examined the hold of the ship, and notified the plaintiffs accordingly.
The Court remarked that if, in point of fact, the article was not merchantable, and was not in kind or quality as represented at the time of the contract, and Deane rescinded the contract, there would be an end to the plaintiff's case. He therefore would so rule, as to save for the defendants the point of law-but so as to have the jury pass directly on this last question submitted, and if that should be found for the defendants, there would be no necessity to argue the law questions—as no new express promise was shown to the plaintiff's on the check.
The jury, after an absence of five minutes, brought in a verdict for the defendants. °C. T. Russell, for plaintiffs ; H. W. Fuller, for defendants. COUNTERFEITING FOREIGN LABELS FOR MANUFACTURES IN THE UNITED STATES.
In the United States Circuit Court (Boston, Mass.,) before Judge Sprague. Clapperton & Findlay vs. Hapgood & Knowles.
The plaintiffs, who are manufacturers in Scotland, bronght a bill in equity against the defendants, who are manufacturers in Worcester, (Mass.) The bill alleged that the plaintiffs made a superior quality of Spool Cotton Thread, which they sold under the name of “Findlay's Thistle Thread;" that every spool had on it a label, with the figure of a thistle, and the words “Findlay's Thistle" engraved on it; that their thread enjoyed a great reputation and an extensive sale in this country. It charged the defendants with having manufactured and sold spool cotton under the name of Findlay's Thistle Thread, having on each spool a counterfeit label made in exact imitation of the plaintiffs’; and prayed for an injunction to restrain the defendants from selling their spurious thread.
The defendants made no defence, but submitted to a judgment against them for a perpetual injunction, with costs, the plaintiffs waiving their claim to damages in consideration of the prompt submission of the defendants.
ACTION TO RECOVER ON A CUSTOM-HOUSE BOND. In the United States District Court, Judge Betts presiding. The United States vs. John Peters and others.
This was an action to recover on a custom-house bond which fell due in 1839, for about $6,000. The defence set up was an offset to the demand, which offset consisted in a draft for $5,000, which the defendants obtained possession of after it fell due. The draft was drawn by James Reeside, a mail contractor, on W. T. Barry, the then postmaster-general, and accepted by R. C. Mason, treasurer of the post-office department. For the defence, it was objected that a claim on the post-office could not be made a set-off against a duty bond, and also that the United States never administered that draft as evidence of a debt due to Reeside.
The court was of opinion that the draft was a valid set-off in the hands of Peters, and in giving this opinion the court was governed by a recent decision of the Supreme Court at Washington, which decided that claims on a particular department could by the United States be set off against a business claim on a general account. Mr. Butler raised an objection that this demand was not on a general account, but on a duty bond, and therefore that the draft could not be made a setoff against it. Verdict for defendants. For United States, Mr. Butler. For defence, Messrs. Gerard and Platt.
SALVAGE-THE AMERICAN. In the British Admiralty Courts, a case was recently decided, the facts of which are thus briefly stated :—The "American," an American vessel of two hundred tons burthen, with a valuable cargo, while on her homeward voyage from the port of London to New York, ran on the Ridge sand or shoal, on the first of January last. She had met previously with most tempestuous weather. The salvors, who were Deal boatmen, were out to aid vessels in distress, and at day-light saw) the ship, with a signal for a pilot and assistance, which was soon boarded by the salvors, and got off with little damage. The value of the ship and cargo was admitted at £6,000. For the services rendered, a tender of £100 was made, but refused. The court, after going over the facts of the case, held the tender of £100 not sufficient, and gave £160 to the salvors, with costs.