HOUGH, Circuit Judge
(after stating the facts as above). Considering the facts presented, it is quite impossible for Croasdale or the Crown to escape liability. Defense is made that the contract limited her load to a smaller amount than that with which she sank; i. e., that petitioners appellees overloaded her, and cannot therefore rely on that admitted implied warranty of seaworthiness which accompanied the vessel and affected her owner. As for the existence, nature, and extent of that warranty, it is enough to refer to The Sylvia, 68 Fed. 230, 232, 15 C. C. A. 362, affirmed 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241. As to the validity of the defense, we agree with the lower court that it is affirmative, and is not proven by a fair preponderance of credible testimony.
It follows that the fact stands uncontradicted that the Crown was tendered as suitable to carry the load for which her size fitted her, [735]*735and under less than that load, in smooth water and calm weather, she sank; in the picturesque phrase of the water front, “she just faded away” without explanation, then or since. This raises a presumption of unseaworthiness (Dupont v. Vance, 19 How. 162, 15 L. Ed. 584; The Kathryn B. Guinan, 176 Fed. 301, 99 C. C. A, 639), which, though rebuttable, has not been met. Therefore the ■ lighter and her owner are liable, and may be held for damages if properly sued.
The ground of liability, in the absence of any evidence of negligence and after utter failure to prove incompetency in her master as alleged ut supra, is solely the implied warranty of seaworthiness, which exists whenever and wherever there is an undertaking to carry goods for hire; in a vessel and on navigable waters. The kind of carriage here contemplated was very humble; it consisted in lying still and acting as a warehouse; still it was carriage, in the sense of sustaining on the water, and that is enough.
But the court below not only decreed this liability as to Croasdale and the vessel, but simultaneously held Harms, and for the same reason, viz. breach of warranty of seaworthiness. To consider this branch of the matter, it must be observed that claimant’s petition under the (then) fifty-ninth rule is in effect a declaration or complaint in an action against- Harms and Croasdale as jointly and severally liable to relieve petitioner from the exigency of the libel, because they and each of them warranted the Crown’s seaworthiness.
Why Croasdale so warranted is plain, as above shown; but Harms was held, and held suable in this form because as broker or agent he hired out the Crown to petitioner without simultaneously divulging both his agency and the identity of his principal — L e., Croasdale, Therefore, although the latter and the boat were liable on familiar maritime principles, Harms was also liable as agent for undisclosed principal.
Assume now that Harms did in point of fact conceal, or not fully disclose, and that liability therefore fell on him; we hold that neither on reason nor authority can such a suit be maintained, viz. an action against Harms and Croasdale together. We agree that the decisions are in great confusion as to election by a third party who has a cause of action against a discovered principal because he is principal, and against that principal’s agent because the latter failed to disclose the whole of the necessary truth. The matter is well discussed in Barrell v. Newby, 127 Fed. 656, 62 C. C. A. 382.
But, whenever or however election must or may be made, it is formally and logically impossible to sue principar and agent in the manner here attempted. This is well put in Tuthill v. Wilson, 90 N. Y. 423, 428, holding that, “granting that each [i. e., agent and principal] was liable, both were not; for both could not be [liable] at one and the same time, since the contract could not be the personal contract of the agent, and yet not his contract, but that of the principal.” The possibilities of suit are interestingly considered by Prof. Mechem in 23 Harv. Law Rev. 590, who shows that in the very few instances, where such illogical procedure was used, the matter passed sub silentio. Tew v. Wolfsohn, 174 N. Y. 272, 66 N. E. 934, is a case where the lower court had permitted it; but the decision above refused to view the [736]*736matter as one of principal and agent, and so avoided a finding. The dissenting opinion of Cullen, J., covers the point with his usual ability. (The discussion of the right to sue jointly in 2 C. J. 901, is misleading. Doubtless both principal and agent-may be made defendants; but if there was an agency, and nothing more, the judgment can never be joint.)
It results that under any view of the law, and on the facts as alleged in the petition, the pleader should have been put to his election in limine. But on this appeal, which is a new trial, we proceed to ascertain the facts as to the hiring or procurement of the Crown.
By uncontradicted evidence it appears that Harms owned a few barges, though none like the Crown, a covered lighter ; but his concern was and had been for many years principally a brokerage house, claiming to be the pioneer in the trade in this harbor. That means that he acted as agent for numerous owners, hiring out their boats with their employees on board, and being paid a percentage on the hire received. For the purpose of this case the claimant of the Jungshoved is Funch Edye & Co., and that concern is Capt. Fleet. This experienced man had used the Crown a few months before, and had gotten her and many similar craft from or through Harms, whom he knew as brokers, but said, when a witness, that he did not know whether Harms Company iyere “brokers or charterers.” This is substantially an admission that they were not ordinarily owners. When Fleet found the lighters already obtained insufficient for his purposes, he got the Crown and through Harms; but there is contradiction in the evidence as to the exact method. He says he telephoned his head office to' get another boat, and a clerk in that office says he telephoned Harms on receipt of Fleet’s demand to “send another lighter over,” evidently assuming that Harms’ man would know what “over” meant— i. e., to the wharf where Jungshoved lay. Harms’ clerk, who undoubtedly got this message from some one, says he talked with Fleet, and said in reply to the request that he could and would send over “Croasdale’s barge,” identifying her as the one Fleet had had before.
Undoubtedly there was some fairly hard swearing in the court •below, both in asserting and denying Croasdale’s defense of a contract for special loading; but we can see no reason for rejecting or neglecting the foregoing plain, simple, everyday story of the oral hiring of a small lighter on a busy day in a crowded harbor. Everything was oral, and everything usual; we believe the usual story, as above told. Result is that petitioner asserted a plea untrue, and knew before the Crown started for the steamer’s side that Harms, a broker, on being asked to send over a lighter, had agreed to send over Croasdale’s lighter, which Fleet had used some months previously.
Assuming, now, two points: First, that an implied warranty of seaworthiness can be read into or annexed to the liability of an agent, who is responsible only because of lack of disclosure, and, second, that Harms was in terms asked to let, charter or hire out the Crown — we hold that, when either Fleet or petitioner’s office clerk knew that Harms was a broker, and would furnish “Croasdale’s barge,” there was a complete disclosure of the fact of agency and the identity of principal.
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HOUGH, Circuit Judge
(after stating the facts as above). Considering the facts presented, it is quite impossible for Croasdale or the Crown to escape liability. Defense is made that the contract limited her load to a smaller amount than that with which she sank; i. e., that petitioners appellees overloaded her, and cannot therefore rely on that admitted implied warranty of seaworthiness which accompanied the vessel and affected her owner. As for the existence, nature, and extent of that warranty, it is enough to refer to The Sylvia, 68 Fed. 230, 232, 15 C. C. A. 362, affirmed 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241. As to the validity of the defense, we agree with the lower court that it is affirmative, and is not proven by a fair preponderance of credible testimony.
It follows that the fact stands uncontradicted that the Crown was tendered as suitable to carry the load for which her size fitted her, [735]*735and under less than that load, in smooth water and calm weather, she sank; in the picturesque phrase of the water front, “she just faded away” without explanation, then or since. This raises a presumption of unseaworthiness (Dupont v. Vance, 19 How. 162, 15 L. Ed. 584; The Kathryn B. Guinan, 176 Fed. 301, 99 C. C. A, 639), which, though rebuttable, has not been met. Therefore the ■ lighter and her owner are liable, and may be held for damages if properly sued.
The ground of liability, in the absence of any evidence of negligence and after utter failure to prove incompetency in her master as alleged ut supra, is solely the implied warranty of seaworthiness, which exists whenever and wherever there is an undertaking to carry goods for hire; in a vessel and on navigable waters. The kind of carriage here contemplated was very humble; it consisted in lying still and acting as a warehouse; still it was carriage, in the sense of sustaining on the water, and that is enough.
But the court below not only decreed this liability as to Croasdale and the vessel, but simultaneously held Harms, and for the same reason, viz. breach of warranty of seaworthiness. To consider this branch of the matter, it must be observed that claimant’s petition under the (then) fifty-ninth rule is in effect a declaration or complaint in an action against- Harms and Croasdale as jointly and severally liable to relieve petitioner from the exigency of the libel, because they and each of them warranted the Crown’s seaworthiness.
Why Croasdale so warranted is plain, as above shown; but Harms was held, and held suable in this form because as broker or agent he hired out the Crown to petitioner without simultaneously divulging both his agency and the identity of his principal — L e., Croasdale, Therefore, although the latter and the boat were liable on familiar maritime principles, Harms was also liable as agent for undisclosed principal.
Assume now that Harms did in point of fact conceal, or not fully disclose, and that liability therefore fell on him; we hold that neither on reason nor authority can such a suit be maintained, viz. an action against Harms and Croasdale together. We agree that the decisions are in great confusion as to election by a third party who has a cause of action against a discovered principal because he is principal, and against that principal’s agent because the latter failed to disclose the whole of the necessary truth. The matter is well discussed in Barrell v. Newby, 127 Fed. 656, 62 C. C. A. 382.
But, whenever or however election must or may be made, it is formally and logically impossible to sue principar and agent in the manner here attempted. This is well put in Tuthill v. Wilson, 90 N. Y. 423, 428, holding that, “granting that each [i. e., agent and principal] was liable, both were not; for both could not be [liable] at one and the same time, since the contract could not be the personal contract of the agent, and yet not his contract, but that of the principal.” The possibilities of suit are interestingly considered by Prof. Mechem in 23 Harv. Law Rev. 590, who shows that in the very few instances, where such illogical procedure was used, the matter passed sub silentio. Tew v. Wolfsohn, 174 N. Y. 272, 66 N. E. 934, is a case where the lower court had permitted it; but the decision above refused to view the [736]*736matter as one of principal and agent, and so avoided a finding. The dissenting opinion of Cullen, J., covers the point with his usual ability. (The discussion of the right to sue jointly in 2 C. J. 901, is misleading. Doubtless both principal and agent-may be made defendants; but if there was an agency, and nothing more, the judgment can never be joint.)
It results that under any view of the law, and on the facts as alleged in the petition, the pleader should have been put to his election in limine. But on this appeal, which is a new trial, we proceed to ascertain the facts as to the hiring or procurement of the Crown.
By uncontradicted evidence it appears that Harms owned a few barges, though none like the Crown, a covered lighter ; but his concern was and had been for many years principally a brokerage house, claiming to be the pioneer in the trade in this harbor. That means that he acted as agent for numerous owners, hiring out their boats with their employees on board, and being paid a percentage on the hire received. For the purpose of this case the claimant of the Jungshoved is Funch Edye & Co., and that concern is Capt. Fleet. This experienced man had used the Crown a few months before, and had gotten her and many similar craft from or through Harms, whom he knew as brokers, but said, when a witness, that he did not know whether Harms Company iyere “brokers or charterers.” This is substantially an admission that they were not ordinarily owners. When Fleet found the lighters already obtained insufficient for his purposes, he got the Crown and through Harms; but there is contradiction in the evidence as to the exact method. He says he telephoned his head office to' get another boat, and a clerk in that office says he telephoned Harms on receipt of Fleet’s demand to “send another lighter over,” evidently assuming that Harms’ man would know what “over” meant— i. e., to the wharf where Jungshoved lay. Harms’ clerk, who undoubtedly got this message from some one, says he talked with Fleet, and said in reply to the request that he could and would send over “Croasdale’s barge,” identifying her as the one Fleet had had before.
Undoubtedly there was some fairly hard swearing in the court •below, both in asserting and denying Croasdale’s defense of a contract for special loading; but we can see no reason for rejecting or neglecting the foregoing plain, simple, everyday story of the oral hiring of a small lighter on a busy day in a crowded harbor. Everything was oral, and everything usual; we believe the usual story, as above told. Result is that petitioner asserted a plea untrue, and knew before the Crown started for the steamer’s side that Harms, a broker, on being asked to send over a lighter, had agreed to send over Croasdale’s lighter, which Fleet had used some months previously.
Assuming, now, two points: First, that an implied warranty of seaworthiness can be read into or annexed to the liability of an agent, who is responsible only because of lack of disclosure, and, second, that Harms was in terms asked to let, charter or hire out the Crown — we hold that, when either Fleet or petitioner’s office clerk knew that Harms was a broker, and would furnish “Croasdale’s barge,” there was a complete disclosure of the fact of agency and the identity of principal. [737]*737Had this very plastic arrangement been reduced to writing, it would have been within Goodenough v. Thayer, 132 Mass. 152. It may be emphasized that we hold the facts to show complete actual disclosure, within the rule as often stated. See Horan v. Hughes (D. C.) 129 Fed. 248, affirmed 129 Fed. 1005, 64 C. C. A. 581, for a case of invoking this rule in respect of a charter.
We do not dwell on the total failure to prove the facts as alleged, and fully denied in answer. Nor do we regard it as profitable to consider the sufficiency of facts reasonably putting on inquiry the person who subsequently seeks to hold the agent for lack of disclosure, though on this point the court’s point of view in Bashinsky v. Sunset (D. C.) 272 Fed. 120, and Great Lakes Co. v. Worthington & Co. (D. C.) 147 Fed. 926, may be noted. Nor is this decision grounded on any custom of maritime or harbor business, though the force of custom in all maritime affairs is very great, as has been often said. The Serapis (D. C.) 37 Fed. 436, is an instance of custom perhaps unconsciously modifying the rigor of the rule here contended for appellee. Nor do we rely on the British decisions on this point of agent’s liability, which are so affected by customs of trade as to be inapplicable without careful and usually unprofitable study.
We have assumed arguendo that (1) an implied warranty, i. e., something reasonably derivable from what was said or written, and, though part of the contract, collateral to the express object of it (Chanter v. Hopkins, 4 M. & W. 404), can arise or be inferred from any view of the evidence herein; and (2) that compliance with the request made of a well-known broker to “send another lighter over” can be construed as a charter of the boat by the broker to the requesting party. Those assumptions are not to be taken as holdings or findings.
As we have found that no cause of action existed against Harms Company, the case may stand as if Croasdale alone had been brought in under the rule; we may take this course on this new trial, but hold that election should have been required below.
Decree modified, by directing dismissal of libel as against Harms Company; in other respects, affirmed, with interest, and without costs to any party but Harms Company, which will recover costs of both courts against petitioner. •