210 A.D. 183 | N.Y. App. Div. | 1924
The defendant Frank Huckabone, the owner of a steam tug, chartered the vessel for three months to the defendant Ocean & Inland Transportation Co., Inc., for towing service in New York harbor, Hudson river, New York State canals and tributaries. The charter party was executed in New York city where the charterer maintained an office. By the terms of the charter party the charterer was given full control over the tug and was to pay all expenses except that the owner agreed to maintain the boat’s hull and machinery in a thoroughly efficient state during the charter term and in the event of a breakdown continuing for twenty-four hours payment for hire was to cease until the boat was again in an efficient state to resume service. Entirely outside of the charter provisions the charterer hired the defendant Huckabone as master.
During the charter term the Oldman Boiler Works, the plaintiff’s assignor, made repair’s to the boiler and smokestack of the tug while in the port of Buffalo and for the value of these repairs the plaintiff has recovered judgment against both the defendant Huckabone and the defendant Ocean & Inland Transportation Co., Inc., and the latter has appealed to this court.
The Ocean & Inland Transportation Co., Inc., was engaged in the business of carrying freight on barges on the Erie canal and employed in Buffalo the firm of Boland & Cornelius, who were there engaged in the business of vessel agents or brokers. The trial court submitted to the jury the question whether the repairs to the tug were ordered by the firm of Boland & Cornelius, and whether the firm had authority from the corporation defendant to order such repairs on its account. The jury’s verdict in favor of the plaintiff answered both of these questions in the affirmative. The burden
The respondent argues, however, that its motion for a direction of a verdict should have been granted and the judgment should, therefore, be affirmed on the theory that the repairs were ordered by Huckabone and that as master he bound the corporation defendant. The evidence that Huckabone, the master, ordered the repairs is not undisputed. There is evidence that the repairs were expressly ordered by Boland & Cornelius. It was at most a question of fact as to whether Huckabone gave orders or not and the motion for a directed verdict was properly denied. There is a further answer to this argument of appellant’s. Huckabone was the master of the tug and as such the agent of the charterer for all matters within the scope of the authority vested in him, expressly or impliedly, by the charterer. (McCarthy v. Eggers, 1 Fed. Rep. 478; Goodridge v. Lord, 10 Mass. 483; Swanton v. Reed, 35 Me. 176.) But he was also the owner of the tug and by the terms of the charter party the obligation to make substantial repairs to the boat’s hull and machinery, as between himself and the charterer, rested on him. In ordering the repairs (assuming that he did so), he had no express or implied authority from the charterer to pledge its credit. The case is devoid of evidence that he attempted to do so. Under the circumstances he must be deemed to have acted as principal and not as agent for the charterer. (Bull v. New York & Porto Rico S. S. Co., 167 Fed. Rep. 792; The Endsleigh, 124 id. 858; The Turgot, L. R. 11 P. D. 21.)
We need not consider whether there might' be a different result had Huckabone expressly attempted to bind the Ocean & Inland Transportation Co., Inc., neither is there involved on this appeal the question, as to the extent of a master’s authority to bind the owner in ordering substantial repairs when the vessel is at a port where with the present development of post, telegraph and telephone, communication with the owner is not only practicable but easy. (Provost v. Patchin, 9 N. Y. 235; McCready v. Thorne,
The judgment appealed from should be .reversed on the law and the facts as to the defendant Ocean & Inland Transportation Co., Inc., and a new trial granted, with costs to the appellant to abide the event.
All concur.
Judgment and orders reversed on the law and facts and new trial granted, with costs to appellant to abide event.
