William Johnson

“ The action here is assumpsit to recover the balance of an account-current against Eichelberger, survivor of Eichelberger & Clemm, the latter having died during the war. The defence is, that the contract was made during war, and therefore void.
The doctrine is not, at this day, to be questioned, that during a state of hostility, the citizens of the hostile states are incapable of contracting with each other. ”

“ It was argued, that the facts of the case do not bring the contract within the principle upon which the court charged the jury, against the plaintiffs; and which is insisted upon by the counsel for the defendants in error.
2. The intercourse between the parties was under the view and permission of the government of the United States, was not contrary to public policy, nor was it such as was inconsistent with the actual hostilities then existing between the two nations. The rule that there shall be no trading with the enemy, is admitted ”

“ If the orders for goods, given by Eichelberger & Clemm, during the war, never afforded a ground of action for the plaintiffs against them, then it is conceived, that the present suit cannot possibly be sustained. ”

“ The language of jurists is uniform on this subject, and reason, policy and humanity sustain the exercise of such a power.
The second ground of exception relied on by the plaintiffs, suggests several considerations. It is insisted, that the goods having been shipped subsequent to the war, and coming to possession of the survivor of Eichelberger & Clemm, constituted a sufficient ground of contract, without reference to the time of purchase, the delivery raising the contract for payment, and the receipt by the survivor being the receipt of the firm to which it was shipped. ”

“ Any right of action, if existing at all, could only have sprung up from the subsequent receipt and appropriation of the goods, and this was by the new firm of J. & W. Eichelberger, and long after the dissolution of the partnership of Eichelberger & Clemm. ”

“ Intercourse inconsistent with actual hostility is the offence against which the operation of the rule is directed. 8 Cranch 163. The evidence in this case shows that commercial letters were allowed by the government to be transmitted to England. ”

“ Clemm, and that the said goods and merchandise were entered in the books of Jesse & William Eichelberger, as their own goods, and were not at any time afterwards considered or disposed of as the goods of Eichelberger & Clemm. ”