Saxton v. Read 1 Hill & Den. 323

Saxton vs. Read.

The master of a vessel has a general authority to bind the owners for needful repairs and supplies for the vessel, (a)

By agreement one Jackson was to go in a schooner as captain, and devote all his time for the benefit of the owners. He was to hire and pay the crew, except the wages of the cook which were to be divided, as also were the port charges, and he was to furnish provisions, &c.; for all which he was to be “ entitled to one half of the net profits of sailing said schooner, the other half to go to the owners the agreement to continue as long as both parties might agree. It did not appear that plaintiff was aware of this agreement, and the schooner was enrolled at the custom-house with defendant’s name as owner, and that of Jackson as captain. Held, that the agreement did not make Jackson owner pro hac vice of the schooner, and that the general owners were liable to plaintiff for stores supplied the schooner on Jackson’s order. (b)

Semble. The general authority of the master to procure, on the credit of the owners, all needful supplies for Ms ship does not, under ordinary circumstances, cease when the ship is in the port where the owners reside, (c)

*324Error to the New York common pleas. Saxton sued Bead for goods sold, &c., to which the general issue was pleaded. On the trial, it appeared that in May and August, 1841, one Captain Jackson purchased of the plaintiff some stores for the schooner Agawane; Jackson was captain of the schooner, and the claim was against the defendant as one of the general owners. The stores were delivered, bills were to be sent to the defendant’s office for payment, and were so sent in November, 1841, when the defendant said he was sorry the first bill had not been presented when due, as he had funds at that time to pay it, and it would have been paid. The sales were at four months credit, both bills being due when presented, averaging the credit which was usual. The defendant refused to pay the bills. The plaintiff had never before dealt with Capt. Jackson, or with the defendant, and it does not appear that he knew anything of the arrangement between the defendant and Jackson. The defendant was informed of Jackson’s purchase at the period when made. It was admitted the defendant was a general owner of the schooner, when these stores were purchased; she was enrolled at the custom-house as owned by the defendant, and Captain Jackson was named therein as master.

Jackson testified that he was captain of the schooner from 20th May, 1841, to February, 1842, that he bought the stores of the plaintiff for the scho’oner, that he was sailing the schooner on shares with the owners under an agreement between them, by which the witness agreed to go in said schooner as captain, and to devote all his time for the benefit of the owners; the witness was also to hire and pay the crew, and all the help required in loading and discharging the vessel, but the cook’s wages and port charges were to *325be divided; the witness was to furnish provisions for the schooner, in consideration of which he was to have one half of the net profits of sailing said schooner and the owners the other half, which was to be received by the defendant for said owners; the agreement to continue so long as both parties might agree, and no longer. This agreement was ended in February, 1842; the defendant furnished and ordered repairs for the schooner, and the master ordered the stores for her, he employed and discharged the crew, and had control of the schooner while the agreement continued. The defendant personally never had any of the stores purchased for the schooner. The master collected the bills for freight, with the exception of one or two cargoes, used part to pay his expenses and paid what he could to the defendant, but when he quit in February, 1842, he could not pay the defendant all which was due the owners. The defendant collected some pay for freight in October, 1841, and he freighted some in the schooner himself. When the bill was made with the plaintiff in August, the master told him to send to defendant who would have funds; the master told the defendant he was purchasing of plaintiff. On 18th and 19th May, 1841, a notice was published in the Courier and Enquirer (a newspaper), which stated that all persons were cautioned against trusting any of the crew or other persons on account of the schooner Agawane, as no debt would be paid, except such as were made or authorized by the owners. Also another notice was published in same paper on 30th and 31st August, and 2d September, 1841, forbidding all persons trusting any one on account of said schooner. No name was put to either notice. There was evidence to show that the plaintiff then took said newspaper. The judge charged the jury, that the owner of a vessel is liable to pay for supplies furnished to the captain for the use of the vessel unless the credit is exclusively given to the latter, and that in this case there was not sufficient evidence that the credit had been given exclusively to the captain. That the captain was not owner pro kac vice, and that the defendant was not freed from liability by the notices in proof. To which charge the counsel for the defendants excepted. Verdict *326for plaintiff. A bill of exceptions was signed and judgment being rendered for the plaintiff, this writ of error was brought by the defendant.

C. S. Roe, for plaintiff

in error. I. The plaintiff in error, (defendant below) is sought to be charged upon an implied assumpsit for goods sold and delivered to a third person. To sustain this action it must be shown either, that the goods came to the use of the plaintiff in error, or were sold upon his credit, to a person having authority to pledge that credit. Upon neither ground is the action sustained. II. That the owner of a vessel is liable for necessary stores furnished, by order of the master, upon the credit of the vessel and owners, is conceded as a general principle. But it is only the owner “pro hac vice”, the owner for the purposes of the particular voyage, or employment of the vessel for which the stores are furnished—who is so liable—and such ownership and liability is determined by ascertaining who then had the possession, control and management of the vessel, who was bound to supply the stores and to whose use therefore have they come. Upon these principles all the cases have been decided. 3 Kent’s Com. (3d ed.), 133 to 138; Abbot on Shipping, 19 (note), 22, 23 and 100; Wendover v. Hogeboom, 7 Johns., 308; Leonard v. Huntington, 15 id., 298; Thorn v. Hicks, 7 Cowen, 697; McIntyre v. Scott, 8 Johns., 159; Champlin v. Butler, 18 id., 169; Ring v. Franklin, 2 Hall’s R., 1; Fisher v. Willing, 8 Seargt. & R., 118; McIntyre v. Brown, 1 Johns., 229.) III. Under the agreement made by him with the plaintiff in error, Jackson (the master), at the time when the stores in question were furnished, had the control and management of the vessel. He was bound to supply the stores and they came to his use ; he therefore was owner “ pro hac vice,” and consequently he is liable and the plaintiff in error is not. IV. The master of a vessel sailing her upon shares under an agreement by by which he is to furnish stores, &c., is, according to express decisions owner “ pro hac vice ” and consequently, under such circumstances, he and not the general owner is liable for stores furnished. (Hallett v. The Col. Ins. Co., 8 *327Johns., 272; Reynolds v. Lappan, 15 Mass. 370; Laggard v. Laing, 16 id., 336.) Y. There is no hardship in the rule contended for, either as a general rule or in its application to this particular case. It is the customary principle on which all cases of implied assumpsit are determined. YI. The notices published by the plaintiff in error, as proved at the trial in the court below, also protect him against liability to pay for the stores in question.

Harris Wilson, for defendant

in error. I. The masters and owners both are liable for necessary stores furnished on the request of the master. The owners are liable for the master’s acts, 1st. Because they choose him. 2d. Because of the benefit arising from the ship which is the equitable motive. 3d. Because they have the direction of the persons who navigate. II. The general owner is liable in all cases for necessary stores except where the credit is given to another, or the stores are furnished to a charterer or special owner with knowledge thereof on the part of the person furnishing the articles. III. The character of owner pro hac vice established in cases involving the question of barratry and questions of freight and the decisions upon that point in cases in which those questions have arisen do not affect the principle of liability of the general owner for necessaries furnished to the ship. IY. The charterer of a ship is only to be considered owner pro hac vice for any purpose in those cases where the general owner has surrendered to him the entire and exclusive possession, management and control of the ship, (a) Y. In this case the owner did not part with the possession of the schooner; the agreement does not give to the master the exclusive control of the vessel; it gives him no control of her except what was incident to him as master; the agreement is only a covenant between master and owners as to remuneration for his services ; the master is not under it an owner pro hac vice. YI. The notices published were not brought home to the defendant in error and he can not be affected by them; there is no analogy between the *328owner of a vessel and a retiring partner; the rule of law therefore in relation to notice of dissolution of copartnership can have no application to this case. VII. The plaintiff in error was liable as owner and he could not relieve himself from his responsibility as owner by such notices. VIII. The agreement in question constituted the owner and master copartners, and as such the owner was liable and could not relieve himself by notice during the continuance of such agreement.