50 Cal. 235 | Cal. | 1875
The District Court had jurisdiction. The action is to recover the value of goods, wares and merchandise sold and delivered, and the plaintiff is pursuing his “common-law remedy.”
The master’s power is presumed, in the absence of evidence to the contrary, to extend to making contracts "for supplies in the home port, which shall bind the owners. (Provost v. Patchin, 9 N. Y. 239, and cases there cited.) Whatever the doctrine of the maritime law, by the analogies of the common law, the duties and relations of the master furnish presumptive evidence of his authority to purchase supplies. The first instruction was not erroneous.
Nor was the second instruction given erroneous. It was simply to the effect that if the purchases were made by the captain with the knowledge and consent of the ship’s husband, the owners were prima facie liable. The juTy were not told that the owners were liable if it affirmatively appeared that the supplies were furnished on the exclusive credit of the ship’s husband, or master, nor can such an inference be properly drawn from the language employed by the court below.
The second instruction asked by defendant was properly refused, as the hypothesis suggested by it is not that exclusive credit was given to the ship’s husband; and again, there seems not to have been any evidence that the goods were “ordered” by the ship’s husband.
The fifth instruction offered by defendant was to the effect, that if there was evidence tending to prove a fact alleged by defendant to constitute a defense, the verdict should be in his favor; or if otherwise construed it is obnoxious to the objection that it does not proceed on the idea of an ex-
The sixth instruction, as offered, does not appear to be sustained by reason or authority.
It was not error to refuse the seventh instruction as asked by defendant. It assumes that if the notes were accepted in payment, they were accepted in payment of the whole account sued on; while, as appears from the evidence, a portion of the articles mentioned in the account were furnished after the notes were given. If, therefore, the notes were received in payment for the goods previously sold, the defendant would not necessarily be entitled to a verdict.
Judgment and order affirmed.
Neither Mr. Chief Justice Wallace nor Mr. Justice Niles expressed an opinion.
