Badger v. President, &c. Bank of Cumberland, 26 Me. 428

Badger v. President, &c. Bank of Cumberland

26 Me. 428 | Me. | 1847

The opinion of the Court, Shepley J. being a stockholder in the Bank and taking no part in the decision, was drawn up by

Tenney J.

This action is for the recovery of the amount of the disbursements on account of one third part of Ship Hermitage, which the plaintiff contends was the property of the defendants, or which for the time was used and treated by them as such. The plaintiff was the owner of the residue of the ship and was ship’s husband.

To prove the title of the defendants, there was introduced *433evidence of a former ownership by one Nutt.er; a bond from Nutter to the Bank, dated Sept. I, 1842, recorded in the city registry of Portland, Nov. 5, 1844, to secure the payment of a note made by the obligor to the Bank ; also parol evidence of an agreement between Nutter and the Bank, that he was to receive a third part of the earnings of the ship for two years, and that afterwards they were to go to the defendants towards his debt; that he paid the interest on the note for a certain time ; and took the earnings till the expiration of the two years, when he informed the officers of the Bank, that he could pay no more interest on the note ; and though he gave no formal notice of abandonment of the vessel to them, he had received none of her earnings since that time. It was in proof that the plaintiff made repairs on the ship after Nutter relinquished his claim to her earnings; that at. the request of the President accounts were rendered to the Bank from time to time containing charges against the ship for repairs, and the expenses attending her voyages, and credit given of her earnings. One of these accounts was settled between the plaintiff and the cashier of the Bank on June 4, 1845, and on the payment by the former of a balance due on account of the one third, which had belonged to Nutter, the latter gave him a receipt therefor in full for the net earnings in his official capacity ; and evidence was introduced by the plaintiff of an agreement between them, that if on a final settlement of the matters appertaining to the ship,' it should be found, that the Bank had received a sum exceeding one third of the net earnings, of which the plaintiff expressed some apprehension, the excess was to be refunded. It appeared also, that the President caused insurance to be effected upon the ship to the amount of $2500, for the Bank ’ and on being called upon at another time by authority of the plaintiff to know, if he would cause insurance to be made upon the ship from Liverpool home, ho replied, that they had risked her from Mobile to Liverpool, and he thought they should risk her home. Upon a memorandum made by the cashier, upon the books of the Bank, there was an entry of the sum received of the plaintiff *434■as one third of the earnings of the ship Hermitage, and certain items being deducted from the amount, for insurance, u balance was found, which balance the cashier testified was applied to Nutter’s note. Before this action was commenced, an account containing the items of the claim in suit was presented at the Bank by the plaintiff’s agent, and a letter from the plaintiff to the defendants demanding payment of the same. Both were delivered to the President, who said he would lay them before the Directors; and afterwards they were returned by the president, who said, “ tell Capt. Badger, we pay nothing back.”

The Judge, not being requested to give any instructions in reference to the nature and effect of the bond introduced, the omission to do so, is no valid ground of exceptions, unless the liability of the defendants is to be determined solely by the legal construction to be put upon it. The plaintiff did not claim to hold the defendants accountable upon the matter disclosed in that bond alone, but it was evidently introduced as one of a series of agreements between the parties thereto, with a view to show the full relations, which had existed and did then exist between them.

In this country a sale and delivery of a vessel may be good between the parties, so as to change the property, without a bill of sale or other instrument in writing; and accounts kept of the proceeds of the vessel, and of the repairs prove an use and possession, which is at least equivalent to a formal delivery at the time of the transfer. Bixby & al. v. Franklin Ins. Co. 8 Pick. 86; Lamb v. Durant, 12 Mass. R. 57; Taggard v. Loring, 16 Mass. R. 340.

No distinction is made in the evidence applicable, between ■:|he sale and delivery of a vessel and any other property. What is competent in one case is admissible in the other. It is not required that the contract of sale of either should be proved to have been made in express terms, but it may be inferred from conversations and acts of the parties, like other ■contracts. Waite v. Gibbs, 4 Pick. 300. Where one is called «pon as the supposed owner of a vessel for the payment of a *435charge upon it, the vessel having formerly belonged to another, the possession of the vessel and the receipt of her earnings, unexplained, is a kind of proof of ownership, which may bo highly satisfactory, and is proper for the consideration of a jury upon the question of title. Such evidence is by no means conclusive. It may not always be of so unequivocal a character as to amount to proof of ownership ; or it may be qualified or entirely controlled by other evidence, bul by no rule of law can it be excluded from the case.

Were the acts of the President of the Bank inadmissible? The Court say in the case of the Bank of Columbia v. Patterson, 7 Cranch, 299. “ It would seem to be a sound rule of law, that whenever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents are express promises of the corporation ; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action would lie. “ Grants and proceedings beneficial to the corporation are presumed to bo accepted, and slight acts on their part, which can be reasonably accounted for, only upon the supposition of such acceptance are admitted as presumptions of the fact. If officers of the corporation openly exercise a power, which presupposes a delegated authority for the purpose, and other corporate acts show, that the corporation must have contemplated the legal existence of such authority, the acts of such officers will be deemed rightful, and the delegated authority will be presumed.” Bank of U. States v. Dandridge, 12 Wheat. 64. The authority of an agent of a corporation need not be proved by record or any writing, but may be shown by acts and the general course of business. Warren v. Ocean Ins. Co. 16 Maine R. 439.

The cashier of a Bank is the regularly authorized agent thereof, and whatever is done by him in that capacity, within the sphere of his duties, is the acl, of the Bank. Burnham v. Webster, 19 Maine R. 232 ; Story’s Agency, sect. 114.

The receipt by the cashier of the Bank of the money paid *436by the plaintiff and the entry of the same on their books were acts of the Bank, which they cannot controvert. The payment was for their benefit, and was received by their authorized agent acting within the scope of his agency. The items of the entry show that the Bank had adopted the acts of the President touching the insurance of the vessel. This was a 'recognition of the President’s authority to take proper measures for the security and the collection of the debt from Nutter. The money which was received by the Bank was upon the settlement of the account which was rendered at the request of the President. His acts, in taking the letter of the plaintiff with the account claimed in this action, and afterwards returning them with the refusal to pay any thing back, were facts in the case, which were properly submitted to the jury, under the instructions given.

The rulings and instructions were not legally erroneous j and the

Exceptions are overruled.