Lyman v. Redman

23 Me. 289 | Me. | 1843

The opinion of the Court was drawn up by

Tenney J.

To charge the defendants in this action, it is not necessary to show, that they were the registered owners or the actual owners of the schooner Clio. A bill of sale, or other instrument in writing, is not essential to the transfer of a ship more than for any other chattel; but ownership may be proved by parol. Actual possession by the party in whom the interest is alleged to be, and acts of ownership by him, are in cases of vessels, as with other personal property, presumptive evidence of title. The papers at- the custom house showed Erastus Redman to be the sole owner, but there was evidence submitted to the jury, tending to show that the defendants not only had the possession of the schooner, employed the master, consulted together about her management, and settled with him, but that they purchased her in the first part of the season of 1839.

The fact has been settled, that the master had not the control of the vessel, so that he could legally prevent the interference of the defendants in her management. This results from the instructions of the Judge and the verdict. The cases are numerous, which show, that the taking the vessel by the master, victualing and manning her, and paying a portion of tlie port charges, and having a share of the profits, do not of themselves constitute him the owner pro hac vice. It is the entire control and direction of the vessel, which he has a right to assert, and the surrender by the owners of all power over her for the time being, which will exonerate them from the liability of the contracts of the master, relating to the usual employment of the vessel in the carriage of goods. The expense of victualing and manning the vessel and receiving compensation for his services and disbursements in a share of the profits by the master, are by no means inconsistent with the right of the employer or owner, to have the general direction of the business in which she is engaged.

The verdict has also established the fact, that the master did not purchase the plaster on his own account, but on account of the vessel and the acting owners. It was not competent for him by virtue of his character as master to bind the defendants in the purchase of a cargo; and before they could be holden therefor, there must be satisfactory proof of previous authority so to purchase, or subsequent ratification of his acts. It would be by one or the other alone, which would make them chargeable. But the evidence to show either, as in any other contract, may be express or implied, circumstantial, as well as positive and direct. The intention of the parties is to be ascertained, and when known, to prevail. Before the jury were authorized, under the instructions, to find a verdict for the plaintiff, they were to be satisfied, that the master had power previously given, to purchase for the defendants, or that they had afterwards adopted and ratified the contract, which he made in their behalf.

The last instruction was substantially, that if the purchase was made by the master, not on his own account, but by him acting for the defendants, and the plaster went for their benefit, or that of the vessel, or was thrown overboard in part, to prevent the destruction of the vessel, and the remainder of the cargo, after Roberts left her, the action could be maintained. This instruction must be looked at, like all others, in connection with the evidence and the other instructions upon the same subject, and will be qualified thereby. The fact having been established, that the master made the purchase on account of the defendants, and it being a result of the verdict and the instructions, that Roberts left the vessel before any part of the cargo was thrown overboard or sold, it follows, that some one must have been in charge of the vessel after he left, and when the cargo was thus disposed of. The evidence is all reported, and is full, clear, uncontradicted and unim-peached, that one of the defendants who acted for the owners had entrusted the vessel and cargo to Darby. There is no evidence that Roberts after this, claimed, or that the defendants admitted him to have had any interest whatever in the plaster. No suggestion is made, that he gave any directions concerning its destination, that it was carried as his freight or that he was advised of the result of the voyage. The one in charge of the vessel testifies that he took her upon shares, and farther we are not informed of the terms of the contract between him and the owners. There was no evidence on which the jury could have returned a verdict, that Roberts was the owner of the plaster after he left the vessel, or that Darby was the owner pro hac vice. The defendantshaving been found to be the acting owners, they are to be considered as having the control, until evidence of the contrary was in the case, and we have seen that taking the vessel on shares does not have this effect. Darby then became the agent of the defendants, and in the default of proof to the contrary, is presumed to have observed their directions in all things, connected with the charge, and to have conducted with fidelity; and whatever were his acts in the premises, were their acts, and so to be treated. They received the cargo into their possession ; the proceeds of the part sold, after throwing overboard a portion for tlse security of the remainder and the vessel, they have received, and it has been appropriated to make repairs upon the vessel, and they have offered to account to no one. The language of the defendants, when they requested the master to go to Lubec, previous to the last voyage, the manner in which they treated similar purchasers previously, the reception of the cargo, when there is evidence that they had knowledge that it was purchased on their account, were facts for the jury to consider, on which they have passed in the inquiry whether the acts of Roberts in their name were authorized or ratified.

The instructions requested by the defendant’s counsel which were not substantially given, were properly withheld, the principles contended for in the latter, not. being warranted by law, or not coming in question by any evidence in the case.

The verdict was well rendered upon the facts in the trial and the

Exceptions and motion are overruled.