19 F. Cas. 505 | U.S. Circuit Court for the District of Pennsylvania | 1805
This is an action of indebitatus assumpsit against defendant, in common form, for repairs done to his vessel, at his request. To support it, the plaintiff must prove the assumpsit of the defendant, either expressly, or by such an implication as the law will raise; that is, that the work was done, at the request of the defendant, or of some other person who had authority to bind him, either express or implied, from the nature of the transaction. The principle upon which the master may bind his owners for repairs, &c. results from the general authority with which, from the necessity of the case, he is clothed; and which nothing but proof that some other person was intrusted to manage the concern, in the particular instance, and this known to the creditor, can defeat. The cases of Chinnery v. Blackburne, 1 H. Bl. 117, note, and Jackson v. Vernon [Id. 114] supiwrt, to the full extent, this doctrine. For a mortgagee of a vessel, even before possession deli vered, has the legal title; and yet he is not responsible for any repairs, nor entitled to any of the earnings of the vessel. If this be the case as to a mortgagee, the argument is a fortiori, in the case of an absolute vendee in possession, whatever defect there may be in his title. The question always must be, with whom was the contract made, and on whose credit?
The case of Westerdell v. Dale [7 Term R. 306] is not apposite to this. For there, Dale and Wharton were partners in the vessel; and, of course, both had an authority to bind the other. The insufficient recital of the certificate, in the conveyance from Dale to Wharton of his half, rendered the whole a nullity, under the particular provisions of the navigation laws of England; and of course, Wharton still retained the authority, once vested in him, to bind his partner. But in this case, Vasy never had authority to bind the defendant, before the purchase; and the sale could not, in its nature, communicate such a power to him. The diffe” ence between the law of England on this point, and the law of the United States, Is striking. The inaccurate recital of the certificate, avoids the deed there: here, it only deprives the vessel of the privileges of an American bottom. If a sea vessel is assigned to a foreigner, the consequence is the ¡■ame. If a coasting vessel, the sale is not void; but the vessel is liable to forfeiture only. In this case, the sale was absolute, not conditional or executory; and was perfected by delivery of possession. The agreement that Eedley should retain the enrolment, created a lien on that paper; but the title to the vessel itself, passed by the sale. In this case, however, it appears that both the license and enrolment were delivered up. Nonsuit directed.
