Strong v. Saunders

| Mich. | Apr 30, 1867

Christiancy J.

The plaintiff below had for some years kept a set of range lights and stakes on the St. Clair Flats, to aid vessels in navigating the channel at night, for which he received no pay from government, but relied upon such compensation as he was able to obtain from the owners of vessels navigating the channel, and others interested in the navigation.

All the evidence tended to show that the lights were a great benefit to the navigation, and that without them it was imprudent and dangerous for vessels, and especially for tugs, towing vessels, to pass the channel across the flats at night. Defendant below was the owner of certain steam tugs engaged in towing vessels between lakes Erie and Huron, which had to pass this channel.

The evidence tended to show that defendant, in the spring of 1864, being called upon by plaintiff for pay for the use of these lights by his steam tug Bob Anderson, for the season of 1863, professed to be ignorant of the nature and value of the services, and upon inquiry of his captain of the tug, and learning the facts, had paid the twenty-five dollars claimed by the plaintiff, which the captain assured him was reasonable. The defendant, in speaking of the use of the lights, always carried the idea that whatever was right to pay the plaintiff he would pay, but declared he would not pay any bill until certified by the captain — that defendant said he wished his captains to make figures as to what he should pay for such services. And though the defendant had refused to subscribe in advance for such services to be rendered, there was evidence tending to show that his answer to such application was that his masters would fix the figures, and that he would pay the amount they fixed or certified.

This suit was brought to obtain compensation for the use of these lights by defendant’s steam tug “I. U. Masters,” for the season of navigation of 1864. Plaintiff declared only upon the common counts, and claimed forty dollars as a reasonable compensation for the use of the lights by a tug of the size of that in question, and plaintiff’s bill for this amount was certified by the captain of the tug as correct.

The captain had also, about the last of October or fore part of November, signed a subscription as master, promising to pay forty dollars for the use of said range lights, by that tug, for the season of navigation of 1864.

The first two exceptions were to the admission of evidence tending to show that defendant had, .in the spring of 1864, paid the plaintiff for the use of these lights by • his tug “Bob Anderson,” for the previous year.

We see no error in the admission of this evidence. It tended, in connection with the other evidence, to show that the plaintiff had been, in the spring of 1864, fully informed of the nature of the plaintiff’s services, and that he recognized them as valuable to him, and as the services for the season of 1864, for which the suit was brought, were of the same nature, it tended, in connection with the other evidence, to show a willingness on his part to pay for such services in future — in other words, a promise to pay for such future services.

The third and fifth assignments of error were very properly abandoned on the argument, and need not be noticed.

The fourth assignment of error is the refusal of the court to charge that, under the facts disclosed in the evidence, no promise to pay for the benefit derived from the range lights could be implied, and the sixth, the charge given upon this point, that it was for the jury to determine ■whether there was any promise on the- part of the defendant, express or implied. There was evidence strongly tending to shoiv an express promise to pay such sum as the defendant’s captain should certify to be fair and reasonable; and there was also evidence tending to show an implied promise, or, in other words, a clear duty on the part of the defendant, to pay a reasonable compensation; and, although this evidence was contradicted by that of the defendant, still it was a question for the jury upon the evidence, and it would have been clearly erroneous for the court to have taken the question from the jury and assumed to decide it himself, in accordance with the request. As the services had already been performed, the plaintiff would be entitled to recover if the jury should find an express promise, or such a state of facts as would create an implied promise.

But the, court was requested to charge that Captain Littleton’s employment as master of the tug “I. TJ. Masters,” gave him no authority to bind the defendant by an agreement to pay the plaintiff for the use of said range lights, and that his subscription of forty dollars for that purpose did not bind the defendant. This request was refused, and the court charged directly the reverse — that if the use of the range lights was necessary and proper, the subscription was binding. This refusal and charge, we think, were erroneous. Had the tug been sailing in a foreign country, or at a great distance from the home port, where the master could not communicate with the owner in time to meet the emergency; or, had the subscription been only for the use of the lights for one or two pass-, ages of the tug over the flats, and it had become necessary to agree upon the sum before he could consult the owner, we are not disposed to deny — though we do not decide — that for such special emergency, he might have had power to bind the owner. But the power to bind the owner for such expenses can not be treated as one of the ordinary general powers incident to his employment as master, like that of contracting for freight, signing' a bill of lading or the purchase of customary supplies. The power here in question can be recognized only as springing from, and therefore, limited by, the necessity of the case. Here could have been no such necessity. For admitting that the tug could not have had the use of the lights without immediate payment or the master’s subscription (though the contrary clearly appeared by the evidence), still as the tug was engaged in towing vessels between Lakes Huron and Erie, and must, in the ordinary course of business, frequently pass Detroit, the home port where the owner resided, the master must have had frequent opportunities of conferring with the owner, and the flats where the lights were kept were about thirty miles from Detroit, where he might communicate daily with the owner by mail.

For the error of the court below upon this point, the judgment must be reversed, with costs, and a new trial awarded.

The othfer Justices concurred.