Harris v. Burdett 76 N.Y. 582

John Harris et al., Appellants, v. Charles P. Burdett et al., Respondents.

(Argued December 11, 1878;

decided January 21, 1879.)

This action was brought by plaintiffs, claiming to be the owners of a brig, to recover the amount of freight moneys earned by her on a voyage from the West Indies to New York, and which had been collected by defendants as consignees and agents of Lamb & Co., under a charter party, by which the said freight moneys were hypothecated to said Lamb & Co.

The charter party was executed by one Cochran, master of the brig, as agent for the owners ; it provided that the freight ivas to be paid to said Lamb & Co. “as security for cash advances.”

Upon the trial, it appeared in evidence, on the part of the plaintiffs, that in December, 1870, they were owners of the brig ; that in December of that year she sailed from Annapolis, Nova Scotia, where plaintiffs, or one of them, resided, under a charter for Montevideo, with a cargo of lumber, and under the command of James Jollymour as master; that the voyage to Montevideo was never completed, and the plaintiffs received no freight money therefor; that plaintiffs next saw the vessel at Brooklyn on the 15th June, 1871, and learned that she had just arrived from Porto Rico, consigned to Whitney & Co., laden with a cargo of molasses *583consigned to Burdett & Pond, the defendants; that on the 19th of Juno, 1871, Harris, one of the plaintiffs, had a conversation with defendants, and was informed by them that, as agents for Lamb & Co:, they had received the freight money, and then had it in their possession ; that the plaintiff, Harris, thereupon gave to the defendants written notice, bearing date on that day, not to part or in any way deal with the said freight money, claiming it on behalf of himself and his co-plaintiff herein, Richard TV". Jones, as owners of the brig. It further appeared on the part of the plaintiffs that, under and by virtue of a decree of the United States District Court for the southern district of. New York, rendered in admiralty on- the 5th day of July, 1871, in a suit instituted by them against the said brig, and against James P. Fullmore and-Cochran, the said Fullmore and Cochran appearing and consenting, it was adjudged that possession of the said brig be delivered to the libelants, and that the marshal of the district accordingly placed said vessel, etc., in the custody of Harris as owner thereof. On the part of the defendants, it appeared that the vessel, after sailing from Annapolis, Nova Scotia, in December, 1870, under command of Jollymour, as master, arrived at St. Thomas, in a disabled condition, on the 2od January, 1871 ; that a written application was on that day made by Jollymour, her master, to James D. Lamb, then British consul at that port, for a warrant of survey on said vessel, which was thereupon issued and executed. Further proceedings of like character were subsequently instituted, which resulted in the condemnation and sale of both vessel and cargo. At the sale the vessel was purchased by Cochran and Fullmore. Lamb & Co., who had previously made advances, at the request of Jollymour, for account of the vessel and cargo, received the proceeds of sale, and in their account rendered credited $2,776.47 as the proceeds of the cargo, and $1,266.27 as the proceeds of the vessel, charging against such proceeds the advances made and expenses incurred by them, and also two drafts on London, one for £400 sterling and the other for £120 12s. Id. *584sterling. The two drafts, with the account and documents relating’ to the sale of both vessel and cargo, and a letter to plaintiffs were given by Lamb & Co. to Jollymour, who took them to Annapolis, and there delivered them to plaintiffs, who received the-drafts, sold* them and retained the proceeds. Plaintiffs subsequently claimed of and received from an insurance company, which had issued a policy of insurance upon the vessel, the full amount thereof, less the year’s premium therefor. Plaintiffs had full knowledge of^ all the transactions at St. Thomas at the time the drafts and the insurance moneys were collected. Held, s- that conceding that the transactions at St. Thomas were in fraud of plaintiffs’ rights, their acts were wholly inconsistent with the assertion of any rights, based upon their original ownership and a claim that it had remained to them unimpaired; that by the adoption and ratification of the acts of Jollymour they were divested of their original ownership of the brig, and the only ownership which they had at the commencement of this action was what they got from Fullmoro and Cochran, which came to them subject to the agreement as to the freight moneys; that defendants could claim the estoppel, as they had dealt with the purchasers on the strength of the apparent ownership.

Edward D. McCarthy for appellants.

John E. Burrill for respondents.