Benson v. Thompson

| Me. | Jul 15, 1847

The opinion of the Court was by

Whitman C. J.

The plaintiff seeks to recover of the defendant the one half of a certain sum, expended in repairs upon a vessel, jointly owned by them. It does not appear that the defendant had appointed the plaintiff ship’s husband, or had ever requested him to make the repairs, or that any were desired or necessary to be made. Yet they were made at a home port, within some six or eight miles of the defendant’s residence; and it does not satisfactorily appear, that he has ever assented to the propriety of their being made.

It is contended, however, by the plaintiff, that the defendant, whether he had knowledge or not that repairs were making, or gave his consent that they should be made or not, is nevertheless, liable for his proportion of the cost. This is a position which it will be difficult to sustain. That, as a general rule, one part owner of a chattel can bestow repairs upon it, and charge the one half, or any other proportion of the amount, to his co-tenant without obtaining his assent to the making of them, would hardly comport with the principles of justice.

But it would seem, that the plaintiff relics upon a distinction, supposed to exist between a ship and other chattels, in reference to the matter of repairs. And there are cases, where one co-tenant of a ship has been recognized by the others as ship’s husband, or managing owner, in which he may cause repairs to be made, without consulting them, and charge the expense to each according to his proportion of interest therein. And so also, if repairs become necessary in a foreign port, and are made to enable a ship to perform a voyage, upon which she had been despatched by all concerned, a contribution might be called for by the one who had advanced his money for the purpose. And it has been held that, as mechanics have a lien upon a ship, in certain cases, when repaired by them, they may, in such cases, though set to work by but one of the owners, maintain an action against them all for their pay. But that one of the joint owners of a ship, in a home port, can be allowed to incur an expenditure for repairs, without the knowledge and consent of the others, and then sue them for their proportions has never been allowed.

Mr. Abbott, in his Treatise on Shipping, (page 84,) after noticing, that some foreign writers have laid it down as a rule, if a ship is in need of repairs, and one part owner is willing to repair, and the other not, the one who is willing, may repair her at their joint expense, remarks that he does not find this rule adopted in practice in any country, and that such a rule in the case of the poverty of him who might be unwilling, would be extremely cruel.

But it is insisted, that the defendant had knowledge of the expenditure, and promised to pay his proportion of it; and, by the agreement of the parties, we are to determine whether such was the fact or not. Upon an examination of the evidence we are unable to come to the conclusion that such was the fact. The witness relied upon to prove it, was Simon McDonald. Taking him to be a credible witness, — and we are not disposed to go into an inquiry whether he is so or not, — his testimony is vague and unsatisfactory. It does not show that the defendant, prior to the time he speaks of, had knowledge of the expenditure; and of course, when he replied as the witness says he did, it cannot be inferred conclusively that he had any reference to a bill for repairs. The defendant may well be supposed to have known of the previous connection of the plaintiff with the vessel; and may be-believed to have understood the plaintiff to refer to the old unsettled accounts concerning it. At any rate we cannot conclude, that the defendant had reference to the present claim,, with any well grounded assurance. Plaintiff nonsuit.