Leonard & M'Cartee v. Huntington, 15 Johns. 298

Leonard & M'Cartee v. Huntington

15 Johns. 298 | N.Y. Sup. Ct. | 1818

Thompson, Ch. J.

delivered the opinion of the court. The. demand on which this action is founded is for repairs done to the brig Recompense. The ground upon which it is sought to make the defendants responsible, is that they were owners of the brig. But this ground is not, under the circumstances of this case, tenable. The brig, on the 3d of May, 1815, had been chartered by Bingham for a voyage to the West Indies. The next day, she was purchased by Bingham, but, by the contract, a bill of sale was not to be given until the stipulated price was paid, or secured to be paid: possession was taken of the brig under this charter and contract. Having performed the voyage stipulated in the charter, the brig was sent by Bingham to the plaintiffs to he repaired, they being previously informed that she was owned by Bingham, and he occasionally attending while the repairs were going on, and giving directions relating to them. Soon after the repairs were made, the last note giVen by Bingham fell due. , The bill of sale was thereupon given, according to the contract.

As between the parties to the contract, there can be no doubt this would relate back to the time when the contract was entered into. Third persons are not, however, to be prejudiced by such relation; and had the defendants remained in possession of the brig, or had the repairs upon her -been made upon their credit, in any manner, the plaintiffs ought not to be affected by such relation;' but that was not the case. They were not, in point of fact, employed by the defendants to make the repairs ; nor could they be considered as looking, in any way, to unknown owners. For they were expressly informed that Bingham was the owner, and so far, therefore, as any claim upon the owner was relied on, he was the person they looked to for payment.

The register standing in the name of the defendant, did not, in any manner, determine the ownership of the brig, according to the decision of the court in Sharp v. The United Insurance Company, (14 Johns. Rep. 201.) The repairs were not made for the defendants, or for their bene*303lit, by authority or direction of the master. He was, n,ot their agent, or acting under their authority or direction. He was, to be sure, the master agreed upon by the charter party; but that was at an end some time before the repairs were made ; Pierce was the exclusive agent of Bingham, the purchaser, and held the vessel for him, and he claimed under the contract, and not under the charter party. So far as respected the repairs, the defendants were mere strangers, (8 East, 10.) and could derive no benefit from them. They had not a right to the possession or use of the vessel. She was held by Bingham under his contract. In the case of Garman v. Bennet, (Stra. 816.) it was held, that, prima facie, the repairer of a vessel has his election to sue the master who employs him, or the owners; but if he undertakes it on a special promise from either, the other is discharged. There was not, to be sure, in the present case, any special promise by any person to pay for the repairs. But there was something equivalent to it, an actual employment by Bingham, as owner, through his agent, the master; and there can be no doubt but Bingham would be liable for such repairs. When a master contracts for the use of the vessel, the credit is given to him in respect of his contract; and it is given to the owners, because the contract is on their account. (1 Term Rep. 109.) But when the contract is made on account of any particular person, as owner, it is on his credit, and not on the credit of any unknown owner, that the expenditure is made. This case is very analogous to that of Wendover and Hinton v. Hogeboom and others, (7 Johns. Rep. 308.) There, as in this case, the consideration money was to be paid by instalments, and a formal bill of sale was not tó be executed and delivered until the payments were completed. No possession of the vessel was delivered ; and it was held, that a regular bill of sale was not essential to transfer the property in a vessel, and that the former owners, under such a sale, were not responsible for articles furnished the vessel. They had ceased to be owners, so far as to exempt them from responsibility for supplies, especially as the credit was not given to them These are principles which apply directly to the case before us, and go to exonerate the de*304fendants from the present demand. They are accordingly entitled to judgment.

Judgment for the defendants.