The opinion of the Court was afterwards read, as drawn up by
Westok J.
The question presented is, whether the defendant Is or is not chargeable, upon the evidence detailed in the case before us. The vessel, the fourth part of which is in controversy, had been a voyage to New Orleans, had sailed thence to Philadelphia, and [426]*426was again destined by the owners to take freight for the former port; in regard to which the defendant, as master, had been advised and directed. At what time in the month of April, 1821, she arrived at Philadelphia does not appear; but it must have been early in the month; as she was advertised again to sail for New Orleans, on the twelfth. By the letter of the defendant of the twenty-sixth of the same month to Winslow Lewis & Co. it appears that he was advised, on his arrival at Philadelphia, that they were the agents of the plaintiff ; but notwithstanding the charter party had then been agreed on, although not formally executed, long enough to have the repairs completed, as the letter states that the vessel had come from the carpenter’s hands, and had commenced loading the morning of its date, that letter contains the first information to Lewis & Co. of the charter he had accepted, and of the entire change in the destination of the vessel. He does not profess to have had authority from either of the owners for this measure; stating that he did not know whether they would like it; but presumed to enter into the contract, as he could not avail himself of their advice. By the course of the mails, an answer to a letter from Philadelphia to Boston might be received in a week from its date, at Philadelphia. If a delay for this short period might have defeated the agreement, it was at least the duty of the defendant to have given to Lewis & Co. the earliest advices of what had been agreed. But this he neglected to do, until, from the intervention of their agents at Philadelphia, he must have been aware that they would learn from them what had been done, if he not furnish the information himself. The net freight earned by the vessel from New Orleans to Philadelphia, as appears by Haven’s deposition, exceeded nineteen hundred dollars. In the defendant’s letter before alluded to, it is stated that Capt. Sanborn had drawn twelve hundred dollars of the freight earned, in behalf, it must be presumed, of his relative, the owner of three fourths of the vessel, and had directed him to take the orders of Lewis & Co. as to the disposition of the plaintiff’s part; of the freight. For this part Lewis & Co. had drawn on the defendant ; with the receipt of which they would have been satisfied. The course pursued by the defendant, was not only a different one from that ordered by the owners; but Lewis & Co. by their letter [427]*427to the defendant of May first, protested against the measure, unless their demand was paid. Under these circumstances, nothing short of the positive direction of the major owner could'have justified the defendant; and no such direction is in evidence, or pretended in the case. Lewis & Co. finding themselves disappointed in the expectation of receiving the plaintiff's proportion of the earnings of the vessel, the preceding voyage, determined to take measures through their agents at Philadelphia, for the collection of their demand.
The transfer to and by Bayley, and the title of the defendant derived therefrom, depended upon the bond given by the plaintiff* to Lewis & Co. and upon their authority to Hathaway & Co. dated May. first. By the power, Hathaway was to demand, and by legal means to recover and receive, the amount of the two notes mentioned in the bottomry, and, if need be, to take possession of and to sell the quarter part of the brig. This gave him no authority to assign and transfer the instruments ; that was derived from the letter of instructions, and was to be done for a specific purpose. By these instructions, if he sold, it was not to be for a less sum than fifteen hundred dollars; but as this limitation does not appear in the power, the title of a purchaser under it, without notice of the limitation, would be unaffected by it. But the agent did not sell the brig. The power therefore may be laid out of the case; as he did not act under that instrument. He sold and assigned the bond and the notes. Under what circumstances was he authorized to do this ? A part of the letter of Lewis & Co. of May first, will determine this question. It is in these words : “ Capt. Harrod, the charterer, or any one else, who may be disposed to advance the amount of the annexed demand, shall have for their security the bottomry bond, which we will warrant and defend, and the policy of insurance on said quarter, say sixteen hundred dollars, from the tenth of December, 1820, to the tenth of December, 1821, at noon, at sea or in port, and they shall withhold one fourth part of the charter of said brig, until they are fully reimbursed.” Lewis & Co. were unwilling to sacrifice the interest of the plaintiff; and they guarded against it. The agent must have assigned in the faith that these terms would be complied wkh. Bayley declined making the advances, and giving credit therefor^ [428]*428But the defendant, under the advice of counsd, took a transfer of the fourth part of the brig, for the express purpose of acquiring authority to raise the necessary funds, by a bottomry, to be executed by himself. The assignment to Bayley, the payment by him to the attorney of Lewis & Co. the sale by Bayley to the defendant, and the acknowledgement of Lewis, Haven & Co. of the receipt of a bottomry bond from him, all bear date on the same day.
In Church v. The Marine Ins. Co. 1. Mason 344. Story J. expresses a strong doubt whether the master, even at a judicial sale, can purchase on his own account •, but he is very clear that he cannot purchase for his own benefit, at a sale which he has had any agency-in directing.
There is no evidence that Lewis, Haven & Co. were pressing for their advances, on account oí the repairs; or that they would have have interposed any obstacle to the sailing of the vessel. For advancing the sum, necessary to liberate her from attachment, they could have taken an assignment of the bottomry, given by the plaintiff to W. Lewis & Co. to be held until reimbursed by the charter: which would have been in accordance with the instructions of W. Lewis & Co. to their agents. They might have been, however, unwilling to do this, unless their previous advances were also included in the bond; and the course pursued by the defendant might have been deemed by him, until he thought proper to set up an adverse and independent title of his own, to be in furtherance of the plaintiff’s interest; the vessel being thus relieved from detention, and placed in a condition to prosecute a voyage, believed to be beneficial to the owners. In point of fact, nothing was raised from the defendant’s funds ; Lewis, Haven & Co. not being paid until after the return of the vessel ; when'the fourth part of her earnings, she having been on charter.
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The opinion of the Court was afterwards read, as drawn up by
Westok J.
The question presented is, whether the defendant Is or is not chargeable, upon the evidence detailed in the case before us. The vessel, the fourth part of which is in controversy, had been a voyage to New Orleans, had sailed thence to Philadelphia, and [426]*426was again destined by the owners to take freight for the former port; in regard to which the defendant, as master, had been advised and directed. At what time in the month of April, 1821, she arrived at Philadelphia does not appear; but it must have been early in the month; as she was advertised again to sail for New Orleans, on the twelfth. By the letter of the defendant of the twenty-sixth of the same month to Winslow Lewis & Co. it appears that he was advised, on his arrival at Philadelphia, that they were the agents of the plaintiff ; but notwithstanding the charter party had then been agreed on, although not formally executed, long enough to have the repairs completed, as the letter states that the vessel had come from the carpenter’s hands, and had commenced loading the morning of its date, that letter contains the first information to Lewis & Co. of the charter he had accepted, and of the entire change in the destination of the vessel. He does not profess to have had authority from either of the owners for this measure; stating that he did not know whether they would like it; but presumed to enter into the contract, as he could not avail himself of their advice. By the course of the mails, an answer to a letter from Philadelphia to Boston might be received in a week from its date, at Philadelphia. If a delay for this short period might have defeated the agreement, it was at least the duty of the defendant to have given to Lewis & Co. the earliest advices of what had been agreed. But this he neglected to do, until, from the intervention of their agents at Philadelphia, he must have been aware that they would learn from them what had been done, if he not furnish the information himself. The net freight earned by the vessel from New Orleans to Philadelphia, as appears by Haven’s deposition, exceeded nineteen hundred dollars. In the defendant’s letter before alluded to, it is stated that Capt. Sanborn had drawn twelve hundred dollars of the freight earned, in behalf, it must be presumed, of his relative, the owner of three fourths of the vessel, and had directed him to take the orders of Lewis & Co. as to the disposition of the plaintiff’s part; of the freight. For this part Lewis & Co. had drawn on the defendant ; with the receipt of which they would have been satisfied. The course pursued by the defendant, was not only a different one from that ordered by the owners; but Lewis & Co. by their letter [427]*427to the defendant of May first, protested against the measure, unless their demand was paid. Under these circumstances, nothing short of the positive direction of the major owner could'have justified the defendant; and no such direction is in evidence, or pretended in the case. Lewis & Co. finding themselves disappointed in the expectation of receiving the plaintiff's proportion of the earnings of the vessel, the preceding voyage, determined to take measures through their agents at Philadelphia, for the collection of their demand.
The transfer to and by Bayley, and the title of the defendant derived therefrom, depended upon the bond given by the plaintiff* to Lewis & Co. and upon their authority to Hathaway & Co. dated May. first. By the power, Hathaway was to demand, and by legal means to recover and receive, the amount of the two notes mentioned in the bottomry, and, if need be, to take possession of and to sell the quarter part of the brig. This gave him no authority to assign and transfer the instruments ; that was derived from the letter of instructions, and was to be done for a specific purpose. By these instructions, if he sold, it was not to be for a less sum than fifteen hundred dollars; but as this limitation does not appear in the power, the title of a purchaser under it, without notice of the limitation, would be unaffected by it. But the agent did not sell the brig. The power therefore may be laid out of the case; as he did not act under that instrument. He sold and assigned the bond and the notes. Under what circumstances was he authorized to do this ? A part of the letter of Lewis & Co. of May first, will determine this question. It is in these words : “ Capt. Harrod, the charterer, or any one else, who may be disposed to advance the amount of the annexed demand, shall have for their security the bottomry bond, which we will warrant and defend, and the policy of insurance on said quarter, say sixteen hundred dollars, from the tenth of December, 1820, to the tenth of December, 1821, at noon, at sea or in port, and they shall withhold one fourth part of the charter of said brig, until they are fully reimbursed.” Lewis & Co. were unwilling to sacrifice the interest of the plaintiff; and they guarded against it. The agent must have assigned in the faith that these terms would be complied wkh. Bayley declined making the advances, and giving credit therefor^ [428]*428But the defendant, under the advice of counsd, took a transfer of the fourth part of the brig, for the express purpose of acquiring authority to raise the necessary funds, by a bottomry, to be executed by himself. The assignment to Bayley, the payment by him to the attorney of Lewis & Co. the sale by Bayley to the defendant, and the acknowledgement of Lewis, Haven & Co. of the receipt of a bottomry bond from him, all bear date on the same day.
In Church v. The Marine Ins. Co. 1. Mason 344. Story J. expresses a strong doubt whether the master, even at a judicial sale, can purchase on his own account •, but he is very clear that he cannot purchase for his own benefit, at a sale which he has had any agency-in directing.
There is no evidence that Lewis, Haven & Co. were pressing for their advances, on account oí the repairs; or that they would have have interposed any obstacle to the sailing of the vessel. For advancing the sum, necessary to liberate her from attachment, they could have taken an assignment of the bottomry, given by the plaintiff to W. Lewis & Co. to be held until reimbursed by the charter: which would have been in accordance with the instructions of W. Lewis & Co. to their agents. They might have been, however, unwilling to do this, unless their previous advances were also included in the bond; and the course pursued by the defendant might have been deemed by him, until he thought proper to set up an adverse and independent title of his own, to be in furtherance of the plaintiff’s interest; the vessel being thus relieved from detention, and placed in a condition to prosecute a voyage, believed to be beneficial to the owners. In point of fact, nothing was raised from the defendant’s funds ; Lewis, Haven & Co. not being paid until after the return of the vessel ; when'the fourth part of her earnings, she having been on charter. Between ten and eleven months, was sufficient for their reimbursement.
If, in these proceedings, the defendant contemplated a benefit to himself, at the expense of the plaintiff, and that from a necessity which he had created without authority; it would be a violation of duty to the plaintiff, inconsistent with the relation existing between [429]*429them, and with the terms under which W. Lewis & Co. would agree to assign their securities, of which he was fully informed.
There are two grounds, upon which the defendant may be considered as having purchased in trust for the plaintiff, at his election. In the first place, a purchase by the master is generally to be considered as made for the benefit of the owners, if they determine so to regard it. This principle is recognized by some of the authorities cited in this cause; and arises from the relations of trust and confidence, which exist between the parties. In the second place, he may be presumed to have assented to purchase on account of the plaintiff. Ho knew that Hathaway & Co. were authorized to assign the instruments only as collateral security, to be held until the earnings of the fourth part of the brig might reimburse the advances made. His offer to reconvey to the plaintiff, shows also that he con-' sidered himself as acting in his behalf. The election of the plaintiff to regard the purchase of the defendant as having been made in trust for him, is evinced as well by his acceptance of the defendant’s draft, as by his bringing this action. The failure of the plaintiff to pay that draft, did not deprive him of his interest in the vessel, or justify the defendant in claiming to hold it thereafter in his own right. Haven, in his deposition, says that forty days was the period limited in the defendant’s draft, by the direction of his house, as the longest to which they would accede. It is not easy to perceive the necessity for this limitation. The term of credit given by them to the defendant on his bond, does not appear. They caused, however, their bottomry interest to be insured, and received the amount from the defendant on the return of the vessel; and it may be presumed that payment on her return was .originally stipulated. If we are to understand the forty days, as the longest period within which they would he satisfied to receive their advances and cancel their bond, without exacting marine interest, it could certainly have been of no importance to them by whose hand the bond might subsequently be paid. Their bottomry and insurance was ample security to them; and they were in fact paid from the subsequent earnings of the plaintiff’s fourth part, under the charter party. If the defendant purchased in trust, a§ he must under the circumstances be held to have done, it does [430]*430not appear that he has at any time made any advances whatever from his own funds; the fourth part of the charter, on the voyage he performed, exceeding the amount of the bottomry by him executed. There was ho occason then for the restricted period of forty days within which to hold the plaintiff to make payment, under the penalty of forfeiting his. interest. There is no evidence, that when the de-, fendant finally paid the bond, there was any deficiency in the earnings of the vessel, which might render it necessary for him to draw on the plaintiff for any sum whatever.
The opinion of the court is, that the defendant is by law accountable to the plaintiff for the earnings of the fourth part of the brig Levant, he being allowed for the amount of the bottomry bond to Lewis, Haven & Co. and for all necessary charges and disbursements; that assessors be appointed to liquidate the amount; and that the verdict be amended according to their award.