168 Mass. 432 | Mass. | 1897
The defendant was one of two owners, but the non-joinder of the other is not pleaded in abatement, and is not relied on. Wilson v. Nevers, 20 Pick. 20. Edler v. Thompson, 13 Gray, 91. It is suggested that the suit ought to be brought in equity, but of course the rule laid down in cases like Smith v. Butler, 164 Mass. 37, as to proceedings between part owners, has no application to a suit by a stranger to the vessel upon an independent contract.
The only question open to argument is whether the defendant was a party to the contract. As to a portion of the account, the defendant personally ordered the articles, and directed them to be charged to the vessel. The rest seems to have been furnished upon the master’s orders, at the request of the defendant, or of an agent of the two owners. It would be going a great way to say that such a request coming from the general owners did not
Exceptions sustained.