Brig Odorilla v. Baizley

128 Pa. 283 | Pennsylvania Court of Common Pleas, Philadelphia County | 1889

Opinion,

Me. Justice Claek:

It is plain that the words “master and managing owner,” as they are contained in the lihel, were not used in any merely technical sense, signifying that the Odorilla was registered and enrolled and had passed under the jurisdiction and control of the United States government. In a purely technical sense, perhaps she could have a master and a managing owner, properly so called, only by virtue of the laws of the United States; but she had owners, in the general sense of the word, from the time the work of construction and equipment began, and if any one of the owners had the superintendence and control of the construction, with power to bind his fellows, he might well be considered the managing owner or even the master, in the general sense of these terms. There is evidence to the effect that William S. Holland was in charge of the construction of this vessel whilst she was at the Christian street wharf, in Philadelphia, and for some time before, when she was at Smyrna, in the state of Delaware. Rudolph Baizley says that Holland superintended the work and reported to the owners’, and that he said he was part owner of the vessel. It appears further, by the testimony of Holland himself, as well as by the contract with Worden & Evans, that he was, in fact, part owner. The witness further says that Worden & Evans, the contractors, became financially embarrassed, and that his father refused to proceed with the construction, until Holland told him to go on with the worK and he would see that he got his money. He further states that Captain Cain, who the defendants admit was managing owner, said to the plaintiff that his money would be all right for they had good security. He says, also, that Captain Holland frequently brought orders to the plaintiff’s store for the work, for sizes, shapes, etc., both before and after the vessel was brought to Philadelphia; that Holland gave almost all the orders. Holland’s declarations, it is true, are not evidence of his agency; but his continuous acts in and about the owners’ business, and their recognition of these acts, are evidence from which his agency may be fairly inferred. The testimony, certainly, is not strong, but we cannot see how the court could disregard the inferences which might reasonably be drawn from the proof. There is evidence to show that at the time Worden & Evans ceased to comply with their contract, there was $4,000 of the price still remaining in the hands of the owners, and this sum they afterwards spent in the employment of others to complete the work, some portions of it being contracted for by Captain Cain and some by Captain Holland. In view of this evidence and of the facts alleged, as already referred to, that Holland was part owner of the vessel, of which he was to be the captain and master; that he superintended the work and reported to the owner; that he gave the orders and agreed that he would see that the plaintiff got his money; and that the work was done on the faith of this promise ; and, further, that Captain Cain, who, the defendants admit, was the managing owner, gave a similar promise to the plaintiff, we cannot see how the court could have withdrawn the case from the jury; for if all this were true the liability of the owners was established, and the lien of the debt attached to the vessel under the act of 1836. Of course, there was counter-vailing proof of the strongest character, but that was for the jury. We have nothing to do with the veracity of witnesses, the conflict in the testimony, or the weight of the evidence; these questions were passed upon by the jury and the verdict is conclusive here. Nor can the judgment of Worden & Evans be set up as an estoppel here. The judgment, it is true, was upon a claim for the same debt, but this was a proceeding in rem, and the cause was presented only as against the vessel, under the act of 1836 ; non constat, because the contractors were responsible for the debt, that the vessel may not be responsible also. We cannot find fault with the answer of the court to the defendants’ second point, as the plaintiff’s claim to recovery here was not under any contract with Worden & Evans, although such a contract may have existed, but under an express contract entered into between the owners of the vessel and the plaintiff.

The judgment is affirmed.