Ennis v. Hutchinson

30 N.J. Eq. 110 | New York Court of Chancery | 1878

The" Chancellor.

On the 5th of November, 1875, an agreement, in writing, was made between the complainant, Edward L. Stewart, John L. Bryant and Thomas Carstairs, by which they assodated themselves together in the construction and maintenance of a steam yacht, for profit and pleasure. Their shares in the vessel, when constructed, were thereby declared to be as follows: Stewart and Carstairs each two-sixths, and Bryant and the complainant each one-sixth. It was provided that no member of the association could sell or dispose of his interest without the agreement, in writing, of each and every other member. By the agreement Stewart was constituted and appointed manager of the interests of the association at Bordentown, and Carstairs treasurer, at Philadelphia, and it was declared to be the duty of the latter to keep correctly all the books and papers, which were at all times to be at the disposal of the members for inspection; that all moneys were to be paid to the treasurer, whose accounts were to be audited by the members, and all bills were to be contracted and paid by him. The vessel was built at Bordentown, by Holmes, Shaw, Brown & Co., and was delivered to the complainant, who, on the delivery, paid to them $450 in full for the balance of the contract price, except $33.52. The cost of the vessel, according to the contract originally made, was $4,400; bur additions and alterations were made, by which the cost was increased. The complainant alleges in his bill, and it is not denied by the answer, that of the original contract price he paid one-fourth, $1,100.

It appears that the enterprise was'not successful. In the absence of the complainant, and without his knowledge, the vessel was taken, by Stewart, from Philadelphia to Borden-town, and, after she had been there about a month, proceedings were instituted against her under the act “ for the collection of demands against ships, steamboats and other vessels,” by Michael McGovern, who claimed that there was due to him the sum of $117.50, for painting done in the construction of the vessel. Under these proceedings a claim of $92 was proved and put in by Charles D. "Whittaker, and Stewart, Bryant and Carstairs also proved and put in claims. Those of Stewart amounted to $901.50; that of Bryant was for $497.91; aud that of Carstairs was for $160. The vessel was sold by the sheriff, under the proceedings, and bought by Stewart for $1,434. He still holds her, and claims to be absolute owner of her. The complainant filed his bill to prevent distribution of the proceeds, and to obtain a decree that Stewart holds the vessel in trust for the complainant and the other owners thereof.

Of the claim of $117.50, on which the proceedings were commenced, $65 were for work (painting) which was included in the original contract price for the vessel, the balance of which, as before mentioned, was, except $33.52, paid to Holmes, Shaw, Brown & Co., by the complainant, on the 24th of June, 1876. That work was done by the claimant, not for the owners of the vessel, but for Holmes, Shaw, Brown & Co. Stewart, in his testimony, says “ the contract made with Holmes, Shaw, Brown & Co. included the work done by McGovern.” Bryant testifies that the contract included the painting. There is room for suspicion, seeing that out of the $1,768.91 of claims proved against the vessel under the proceedings, all except $209.50 were put in by three of the owners of the vessel for their expenditures on or in connection with the vessel, that, so far as those owners were concerned, the proceedings were amicable, at least, if they were not, indeed, taken by their procurement, or at their instigation or instance. It appears that Bryant and Stewart were dissatisfied, because, as they alleged, the complainant and Carstairs failed to pay their shares of the expenditures made by the former for or in connection with the vessel, and Stewart, to whom she had been delivered by Bryant, took her to Bordentown.

The bill alleges that the associates were partners in the construction and equipment and use of the vessel, and the answer admits it; but apart from that, if the owners be considered merely tenants in common of her, equity requires that Stewart shall not, under the circumstances, have the benefit of this purchase. If the proceedings were in invitum (which does not by any means appear), the relation between tbe parties would prompt the court to relieve the complainant if it could equitably do so.

The complainant swears that he had no notice of the sale; that his business is that of a traveling salesman, and he is absent from home most of the time; that when he left home he had paid all that he was required to pay; that he was absent from home, traveling through the east and west, from January 1st, 1877, to about the 1st of April, following; that when he left home the vessel was lying at the Alms House wharf, on the Schuylkill river; that she was then in charge of Bryant, and he advised the latter to take her to Cramp & Sons’ ship-yard and leave her there for sale; that he made the same request of Carstairs, the treasurer; and that he never had notice of any kind that there was to be a sale of the vessel, or that any one had a lien upon her; that he requested Stewart to meet him at the treasurer’s office, qt any time he might designate, and have all matters settled, but that Stewart never responded; that there was no agreement that Stewart should have pay for superintending the construction of the vessel, for which he charges in his claim, proved as before mentioned, $280; that it was never mentioned; that he has no knowledge of any bills against the vessel for construction, fitting out or equipment, and has no knowledge of any of the claims proved before the commissioner. The enterprise, as before remarked, appears to have been a failure, and the vessel seems not to be suited to business other than that for which she was designed. It is probable that she brought, at the sheriff’s sale, as much as could have been got for her at public, and, perhaps, at private sale, but the method which Stewart, Bryant and Carstairs have adopted, or of which they have availed themselves, of obtaining satisfaction of their claims by means of proceedings under the act, cannot, for various reasons, be approved. The complainant has a right to contest those claims.

Stewart will be declared to hold the vessel in trust for himself and the other owners. She will be sold, under the direction of this court, for the benefit of the owners, to the end that partition may be made, and there will be an account to ascertain the amount to which each is entitled out of the proceeds.