The Boise Penrose

22 F.2d 919 | 2d Cir. | 1927

L. HAND, Circuit Judge

(after stating the facts as above). The libelant has not appealed, and, though the ease comes here upon a trial de novo, it raises no question in its brief as to the dismissal of its libel in rem. We pass, therefore, the propriety of that portion of the decree, and proceed to the only question raised; i. e., the decree against the appellant in personam.

The pleadings are scarcely sufficient to raise the question. The libel was in rem for a lion under the Maritime Liens Act of 1920, and suggested no liability against the appellant. The impleading petition relied wholly on the warranty in the bill of sale from the appellant to the claimant. Nowhere in the pleadings, therefore, did any party assert the cause of suit on which recovery was had. We notice the point, without deciding it, lest it should be thought that hv our silence we assume the propriety of a decree on such pleadings.

The theory of the libelant is that the Barton Company, as vendee in possession, was agent of the appellant, as vendor, to contract for the repairs. The question is of common-law liability, not of maritime law, and the situation is indistinguishable from that of supplies furnished, or repairs done, at the order of a mortgagor in possession. In England tlie law was in some confusion on the point (Jackson v. Vernon, 1 H. Bl. 114; Westerdell v. Dale, 7 Term Rep. 306), until the case of Mitcheson v. Oliver, 5 El. & Bl. 419. In Jackson v. Vernon a mortgagee was held not liable, and Westerdell v. Dale turned upon special circumstances, the defendant still remaining part owner, though not in charge. Lord Kenyon, however, indicated obiter an opinion contrary to the result in Jackson v. Vernon. In Miteheson v. Oliver a vendor, who kept title as security, was exonerated, unless proved to have given authority to the vendee, express or by estoppel. Although Westerdell v. Dale and Jackson v. Vernon were not discussed, we take it that this case settles the law in that country. The Troubadour, L. R. 1 Ad. & E. 202; The Great Eastern, L. R. 2 Ad. & E. 88, 90. In Tucker v. Buffington, 15 Mass. 477, the mortgagee was held, chiefly on a dictum of Lord Kenyon in Westerdell v. Dale, and on the supposed authority of Abbott. However, in Brooks v. Bondsey, 17 Pick. (Mass.) 441, 28 Am. Dec. 313, and Howard v. Odell, 1 Allen (Mass.) 85, the mortgagee was exonerated, and Tucker v. Buffington must now be considered as depending upon estoppel.

The New York law is well settled in favor of the appellant here. In McIntyre v. Scott, 8 Johns. (N. Y.) 159, and Macy v. Wheeler, 30 N. Y. 231, a mortgagee was exonerated, and in Wendover v. Hogeboom, 7 Johns. (N. Y.) 308, Leonard v. Huntington, 15 Johns. (N. Y.) 298, and Thorn v. Hicks, 7 Cow. (N. Y.) 697, the same was ruled in respect of a vendor, who'had reserved title as security. Philips v. Ledley, Fed. Cas. No. 11096, involved a vendor, and Davidson v. Baldwin, 79 F. 95 (C. C. A. 6), a mortgagee. In eaen ease the defendant succeeded. The mortgagee was assumed not to be liable in Morgan v. Shinn, 15 Wall. 105, 21 L. Ed. 87, 110, and this was the actual decision, in respect of freights fraudulently collected, in Calumet & Hecla Mining Co. v. Equitable Trust Co. (D. C. S. D. N. Y.) 275 F. 552.

To-day, so far as we can find, it is universally held that neither a mortgagee, nor a vendor reserving title, is as such liable for supplies or repairs. There must be some conduct other than the registry of title in his own name which estops him to deny that the mortgagor or vendee is his agent, or some proof of actual authority. The stipulation in the contract for a bond to secure the appellant against liens, instead of indicating any authority of the vendee to contract as agent, seems to us strong evidence of just the opposite intent. Certainly it is a strange agency in which the agent agrees to secure the principal against the consequences of acting within the scope of his authority.

None of the eases respecting liens upon vessels for such services has any bearing on the controversy, for obvious reasons.

Deeree reversed; libel dismissed.