Carpenter v. Ritscher

72 F. 283 | 2d Cir. | 1896

SHIPMAN, Circuit Judge.

Prior to July, 1890, George M. Rollins, then of New York City, owned the Grade May, a pleasure yacht of about 30 feet in length and of about 5 tons burden. He was engaged in a number of electrical enterprises, and in the formation of car trusts, but be had no property, and was generally “short of ready money.” He owed the claimant, who was his lawyer, and whom lie frequently consulted, and with whose family he and his family were on intimate terms, quite a large bill, and in July, 1890, offered to let him (Mr. Carpenter) hare the yacht in payment of the bill up to that time. To this proposition Mr. Carpenter assented, and, a.few days after, took formal possession of the boat, and, with Mr. Rollins, sailed in her on the Sound. She was thereafter left in Mr. Rollins’ care and apparent sole control, at the Jersey City Yacht Club House. He was a member of this club, and during the summer seasons sailed the boat frequently upon short excursions, in neighboring waters. He managed her alone, without sailing master or crew. For three or four years before May, 1893, Rollins was in the habit of buying the necessary supplies of provisions for these occasional trips from the libelants, Peter C. Ritscher & Co., grocers in Jersey City, who had a shop near the water, and whose business it was to supply vessels. They supposed that Rollins owned the boat, knew that he was the only person who was managing her, and delivered the goods on board of her as they were purchased. Rollins was in the habit of paying his preceding bill at the beginning of each season, and on May 27, 1893, paid the previous bill, ordered a bill of $9.84, said, "Let the bill run for the season as previously,” and thereafter purchased supplies from time to time until October 7, 1893, when the entire account, which was exclusively for necessary supplies for the boat, amounted to $108.57. • He died March 4, 1894, without any property, and the bill is still unpaid. The account was kept exclusively in the libelants’ day book. The items were generally charged to “Rollins”; occasionally to “Rollins. Yacht Grade May-’; ■ and once to “Grade May.” A bill was sent by mail to Rollins in the autumn of 1893, which was made out to “Grade May and Owners.” The libelants testified that they gave credit to the yacht for the amount of the' bill.

The libelants’ counsel place their case upon the fact that they furnished necessary supplies to a vessel in a foreign port, upon the sole order of the master, in the absence of the owners, and that, under such a state of facts, the presumption is that there was a necessity for the credit of the vessel. The supplies were furnished upon the order of the reputed owner, who was also master and crew, and who was the only person who apparently had any connection with the boat. The application, to a case of this sort, of the rule respecting a lien for repairs and supplies furnished in a foreign port, upon the order of the master, would be a strained one. The rule had its origin in necessities of commerce, and to apply it to the case of supplies furnished to this tiny pleasure craft upon the order of the person who seemed to be the owner, and who was amusing himself with its management, is irrational. The question of credit must depend upon the facts and the probabilities, without the aid of technical presumptions. The material men were grocers, whose special business it was to supply vessels. The reputed owner and the purchaser lived, at the time, in Brooklyn, and was without property. The libelants had no other business with him than to furnish his boat, and apparently knew very little, if anything, about him. They knew that he had paid his bills annually, and had the bearing of a gentleman, and they were willing to sell him goods. The careless way in which the account was kept throws very little light on the question of credit. They testify that they relied upon the boat, but this bare statement would not satisfy the mind unless it was corroborated by the surrounding circumstances and probabilities. It is difficult to believe that these material men, whose; business it was to furnish goods to vessels, and whose sole business with Rollins was to supply the yacht with stores, were placing- their exclusive reliance for payment upon a comparative stranger, who, during- the summer season, made his occasional calls in behalf of his yacht which lay at the wharf. Credit, but not exclusive credit, was given "to Rollins, whose appearance and annual return and annual payment of bills had gained for Mm the belief that he would continue the same course; but credit was also given to the visible property within their sight.

The decree of the district court is affirmed, with interest and costs.