Shumway v. Clark

114 Mass. 103 | Mass. | 1873

Morton, J.

The answer of the trustees states that they owe one hundred and sixty-seven. dollars for freight of a cargo of iron on board the schooner Pinta; that the bill of lading was signed by Clark, the principal defendant; that they have no account with Clark, but their only account is with the owners of the schooner ; and that they are informed and believe that Clark was not the master of said vessel, and did not sail in her when she brought said cargo. The mere fact that Clark signed the bill of lading does not entitle him to collect the freight to his own use, and it is clear that, upon this answer, the plaintiff does not show that the trustees had in their hands any goods, effects or credits of Clark.

After the trustees had answered, the plaintiff, without objection, filed additional allegations under the statute, averring that Clark was master of the vessel, sailing her on shares, on the voyage when this freight was earned, and was entitled to collect the freight. Gen. Sts. c. 142, § 11. If he had the right to file these allegations, the facts alleged were to be tried by the court or a jury, as the court should direct, and the finding of the court thereon was conclusive against him. It was certainly competent for the court to find upon the evidence before it that the plaintiff had failed to prove his allegations. The only material evidence was the answer of William Wilbur, one of the owners, who had appeared as a claimant, to interrogatories proposed to him by the plaintiff, from which it clearly appeared that Clark was not master on this voyage, and had no interest in the freight. ■

The record before us shows conclusively that the alleged trustees were not the debtors of the principal defendant. The judgment of the Superior Court is therefore affirmed.

Trustees discharged.