Eckford v. Wood

5 Ala. 136 | Ala. | 1843

GOLDTHWAITE, J.

Although this case is somewhat embarrassed by the quantity of evidence, and entangled by the number of charges requested, yet the rules which must govern it are few and exceedingly plain.

The claim of the plaintiffs to be reimbursed for the money paid for the defendant, arises from two distinct grounds; first, from the payment on account of the general -average for the goods thrown overboard, and secondly for that made under the decree for salvage.

1. As to the general average, the rule of the civil law is that the master may sue and be sued for the adjustment of it, but by the common law, each shipper who receives his goods, is liable to an aetion at the suit of every one entitled to receive from him. [Abbott on Ship. 361.] The master also has the right to retain the goods until the adjustment is made, and the average paid; but it is said, a court of equity will not compel him to assert this right for the benefit of those entitled to contribution, [ib. 362.] If the master has the right to retain the goods until the average is adjusted and paid, as admitted by all the authorities, it follows that a payment to him must discharge the contributor from all the contributees, although the money may never reach their hands; and this consequence goes far to establish the reasonableness of the rule of the civil law; but conceding the master cannot sue or be sued according to the common law, we cannot doubt that if the master, or the consignee, who is his agent, voluntarily parts with goods which he is authorised to retain, and afterwards pays the contribution, for which he could have retained them, an implied assumpsit is raised, that he shall be repaid by the owner! In Simmons v. White, [2 B. & C. 805,]. it is said “ that the shipper of goods, tacitly, if not expressly, assents to general average as a known maratime usage; and by assenting to it, he must be understood to assent also to its adjustment, according to the usage and law of the place where the adjustment is to be made.”

2. In this case, the stipulation of McMorris & Knox, certainly did not bind the defendant, because it did not purport to do so, nor was it executed by them as his agents. So neither can it have the effect to discharge him from liability, as there has been no satisfaction under it. The defendant is 'bound, by the payment made for his benefit, and a sufficient authority to make it, may be presumed from the reception of the goods without paying the contribution for which they were liable.

3. With respect to the claim growing out of the payment of the decree for salvage, it rests on principles slightly different.

There is no question, we think, that the master was authorised to contest the claim of the salvors, and to liberate the vessel and cargo, on the customary stipulation; and this, cither as the agent of the owners of the cargo, or as the agent of the ship owners who were entitled to retain the cargo until the payment of freight. When then the plaintiffs became the master’s sureties on the admiralty stipulation, they weré, in effect, the sureties- for the owners of the goods and vessel, released by this act of the master. As the goods were primarily liable for the payment of the decree, the payment made by the plaintiffs was so much money paid for each contributor as his proportion comes to.

4. Independent of these considerations, the evidence discloses two other grounds, either of which, in law, amounted to a satisfaction of all which the plaintiffs had done. It seems this defendant directed his agents to pay the claim, and also that compensation had been made to him by his insurers. Either of these cir-enmstances would authorise the presumption of a satisfaction of tike payment made by the plaintiffs.

The application of these principles will show’’ aE3; ability in the defendant, but there are errors in the charges given and refused, for which the judgment must be reversed.

4. The court charged, that if McMorris & Knox, were the agents of the defendant, and if they, as such, requested that the stipulation for the average should be taken, he would thereby be bound. This is erroneous,because, as agents they did not attempt to bind him, but only bound themselves personally. It is true, he ,was bound without such a stipulation, but for what we can know, the verdict may have been based on this charge. The sixth charge, which requested instructions that the defendant was not bound by this stipulation, ought to have been given, although there was enough independent of it.

6. It is probable, after all, that this action was premature, inasmuch as the record shows it was commenced in January, 1841, while the transcript offered hi evidence states the decree in the admiralty proceedings, as having been had in June afterwards. The seventh charge requsted evidently relates to this condition of the proof, and certainly it was not competent for the plaintiffsJto dispute the conclusiveness of their own evidence as to the time. The charge ought to have .been given, and if the record is correct, it would probably have produced a different result.

Let the judgment be reversed and remanded.