The judgment of the court (King, J. absent,) was pronounced by
Slidell, J.
Miller and Whipple owned the steamboat Medora. Whipple died in NTew Orleans, in January, 1847 : his succession was opened here ; andr after some delay, Jouanneau was appointed curator. In February, 1847, while making her second trip after Whipple's death, an explosion of her boilers took place, by which she was much injured. Miller then sold his interest, of three-fourths, to the defendant, who repaired and put her in running order. In April, the curator brought this suit, in which he claims one-half of the boat. Shannon answered claiming three-fourths, and asking to be allowed the sums he had expended for necessary repairs.
The first point which requires consideration is, the extent of ownership of the parties. The enrollment, which \vas made in 1846 upon the oath of Miller, states that he, together with Whipple, are sole owners of the Medora. To prove that Whipple's interest was only a fourth, the defendant offered the testimony of the steamer’s clerk, who deposes that he kept her books : that Miller appeared on the books as owner of three-fourths, which he afterwards sold to-Shannon ; that Whipple, who acted as the boat’s engineer, owned one-fourthy as also appeared on the books'; that he never claimed a larger interest, and, in all his settlements of account whit the boat, acted on the basis of an interest of" one-fourth.
The-plaintiff objected to this'testimony, on the ground, “that the enrollment, introduced in evidence by plaintiff, having established1 the joint ownership of the [331]*331steamboat by plaintiff and defendant, and the law (C. C. 2836) raising in plaintiff’s favor the presumption Lhat said joint ownership was equal, the title of defendant to a greater portion of such boat could only be established by an instrument in writing, inasmuch as plaintiff established his interest by evidence of that character,”-—which objection the court overruled, and the plaintiff took his bill of exceptions.
The ruling of the court does not appear to us erroneous. It may be conceded that, the analogy of the article of the Code referred to justifies the presumption invoked by the plaintiff. It declares that “when the contract of partnership does not determine the share of each partner in the profits or losses, each one shall be entitled to an equal share of the profits, and must contribute equally to the losses.” But, while the enrollment fairly raises that presumption, it is not a presumption juris et d.e jure. It is merely a presumption supplied, in the silence of the parties, upon the principle that equality is equity, and that an equitable standard will be applied where the parties had not expressly furnished one. The burden was thrown upon Shannon to rebut the legal inference, and we think he has done so successfully.
It will be observed that no objection was made to the non-production of the books and accounts, nor to the parol proof of their contents. 1 The books and accounts, under the circumstances, ware equivalent to a written title in favor of the defendant: and parol proof of their contents, unless specifically objected to, as being secondary evidence, must receive the same consideration as the books themselves.
Concurring in opinion with the district judge that, Whipple owned only one-fourth of the steamer, our next enquiry will be directed to the conduct of Shannon after IFhipjple’s death, and its legal consequences.
The right of a part owner in possession, who owns the preponderating share of a vessel, to employ her in her usual trade, where no objection is made by his co-proprietor, appears to be undoubted. It is only in the case where the owners disagree, that we find any conflict in the jurisprudence of maritime nations. The laws of France, the ordinances of tiro Hanse towns, those of W’isbuy, and generally the ancieut usages, are said to authorize the exercise of a complete authority by the majority in interest. The english law qualifies this authority. It authorizes the majority in interest to employ the- ship, yet, at the same time, protects the interests of the dissentient minority from being lost in any employment which they disapprove, by requiring the majority to give security for the vessel’s safe return. Differing upon a minor point, the laws of all commercial nations harmonize to this extent, that they are founded upon equitable principles and an enlarged public policy. In the language of a learned author, “ ships are built to plough the sea and not to lie by the walls, and their actual employment is considered as a matter not merely of private advantage to their owners, but of public benefit to the State ; and therefore rules have been adopted to favor this employment, and to prevent the obstinacy of some of the part owners from condemning the ship to rot in idleness.” Abbott on Ship., p. 125.
In a liberal furtherance of these principles it has been held that, if the dissenting part owner does not apply for security, he is supposed to consent to the employment of the ship, is liable for his share of the expenses, and entitled to a share in the profits. Gould v. Stanton, 16 Conn. 12, cited in notes to Abbott, edit, of 1846.
We have not found in the books any case where the question of the right of employment, after the death of a part owner, has occurred. But, upon [332]*332principle, we conceive the cases are not distinguishable. The rights and' the ob-. ligations of a party are transmitted to his heirs. 1Whipple, when he assented to, become a part owner with Miller, assumed all the obligations and liabilities: which pertained by legal implibation to that relation. If Miller choose to send the steamer on a voyage, and Whipple did not object, the vessel and the. voyage were not at Miller’s sole risk. If Whipple objected, his remedy was by-application to a competent tribunal to compel his associate to give security. With, what propriety can the, character of- the contract, and the reciprocal rights and duties of the parties, be immediately changed by the transmission of the interest qf Whipple to his heirs 1 Public policy, and th.e interest of' Miller, who was, tho owner of threerfotirths of the vessel, stilj required that she should not lie idle at the wharf,; but be usefully employed.
The peculiar circumstances, presented in this case illustrate very strongly the-propriety of maintaining the principles aboye explained, even after the death of-the part owner. The steamer had been advertized to leave, on her usual voyage, on the day of Whipple’s death. She was a regular packet, had been taking in cargo on the day. of his death and the day previous, and was heavily, laden. If' the argument of the plaintiff’s, qoqnsel be correct, and Whipple’s death terminated the controlling, power of the majority interest, the steamer should not only-have withdrawn from all future business, britf have disappointed passengers-already engaged, and disembarked the freight shg had already received. Such a proposition certainly involves an injustice to Whipple’s co-proprietor, and a disregard of the interests of commerce.
It is proper also to, ajld that, the boat- made qnly-two trips aftqr the part owner’s, death, and these were in her regular trade as a packet. .
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The judgment of the court (King, J. absent,) was pronounced by
Slidell, J.
Miller and Whipple owned the steamboat Medora. Whipple died in NTew Orleans, in January, 1847 : his succession was opened here ; andr after some delay, Jouanneau was appointed curator. In February, 1847, while making her second trip after Whipple's death, an explosion of her boilers took place, by which she was much injured. Miller then sold his interest, of three-fourths, to the defendant, who repaired and put her in running order. In April, the curator brought this suit, in which he claims one-half of the boat. Shannon answered claiming three-fourths, and asking to be allowed the sums he had expended for necessary repairs.
The first point which requires consideration is, the extent of ownership of the parties. The enrollment, which \vas made in 1846 upon the oath of Miller, states that he, together with Whipple, are sole owners of the Medora. To prove that Whipple's interest was only a fourth, the defendant offered the testimony of the steamer’s clerk, who deposes that he kept her books : that Miller appeared on the books as owner of three-fourths, which he afterwards sold to-Shannon ; that Whipple, who acted as the boat’s engineer, owned one-fourthy as also appeared on the books'; that he never claimed a larger interest, and, in all his settlements of account whit the boat, acted on the basis of an interest of" one-fourth.
The-plaintiff objected to this'testimony, on the ground, “that the enrollment, introduced in evidence by plaintiff, having established1 the joint ownership of the [331]*331steamboat by plaintiff and defendant, and the law (C. C. 2836) raising in plaintiff’s favor the presumption Lhat said joint ownership was equal, the title of defendant to a greater portion of such boat could only be established by an instrument in writing, inasmuch as plaintiff established his interest by evidence of that character,”-—which objection the court overruled, and the plaintiff took his bill of exceptions.
The ruling of the court does not appear to us erroneous. It may be conceded that, the analogy of the article of the Code referred to justifies the presumption invoked by the plaintiff. It declares that “when the contract of partnership does not determine the share of each partner in the profits or losses, each one shall be entitled to an equal share of the profits, and must contribute equally to the losses.” But, while the enrollment fairly raises that presumption, it is not a presumption juris et d.e jure. It is merely a presumption supplied, in the silence of the parties, upon the principle that equality is equity, and that an equitable standard will be applied where the parties had not expressly furnished one. The burden was thrown upon Shannon to rebut the legal inference, and we think he has done so successfully.
It will be observed that no objection was made to the non-production of the books and accounts, nor to the parol proof of their contents. 1 The books and accounts, under the circumstances, ware equivalent to a written title in favor of the defendant: and parol proof of their contents, unless specifically objected to, as being secondary evidence, must receive the same consideration as the books themselves.
Concurring in opinion with the district judge that, Whipple owned only one-fourth of the steamer, our next enquiry will be directed to the conduct of Shannon after IFhipjple’s death, and its legal consequences.
The right of a part owner in possession, who owns the preponderating share of a vessel, to employ her in her usual trade, where no objection is made by his co-proprietor, appears to be undoubted. It is only in the case where the owners disagree, that we find any conflict in the jurisprudence of maritime nations. The laws of France, the ordinances of tiro Hanse towns, those of W’isbuy, and generally the ancieut usages, are said to authorize the exercise of a complete authority by the majority in interest. The english law qualifies this authority. It authorizes the majority in interest to employ the- ship, yet, at the same time, protects the interests of the dissentient minority from being lost in any employment which they disapprove, by requiring the majority to give security for the vessel’s safe return. Differing upon a minor point, the laws of all commercial nations harmonize to this extent, that they are founded upon equitable principles and an enlarged public policy. In the language of a learned author, “ ships are built to plough the sea and not to lie by the walls, and their actual employment is considered as a matter not merely of private advantage to their owners, but of public benefit to the State ; and therefore rules have been adopted to favor this employment, and to prevent the obstinacy of some of the part owners from condemning the ship to rot in idleness.” Abbott on Ship., p. 125.
In a liberal furtherance of these principles it has been held that, if the dissenting part owner does not apply for security, he is supposed to consent to the employment of the ship, is liable for his share of the expenses, and entitled to a share in the profits. Gould v. Stanton, 16 Conn. 12, cited in notes to Abbott, edit, of 1846.
We have not found in the books any case where the question of the right of employment, after the death of a part owner, has occurred. But, upon [332]*332principle, we conceive the cases are not distinguishable. The rights and' the ob-. ligations of a party are transmitted to his heirs. 1Whipple, when he assented to, become a part owner with Miller, assumed all the obligations and liabilities: which pertained by legal implibation to that relation. If Miller choose to send the steamer on a voyage, and Whipple did not object, the vessel and the. voyage were not at Miller’s sole risk. If Whipple objected, his remedy was by-application to a competent tribunal to compel his associate to give security. With, what propriety can the, character of- the contract, and the reciprocal rights and duties of the parties, be immediately changed by the transmission of the interest qf Whipple to his heirs 1 Public policy, and th.e interest of' Miller, who was, tho owner of threerfotirths of the vessel, stilj required that she should not lie idle at the wharf,; but be usefully employed.
The peculiar circumstances, presented in this case illustrate very strongly the-propriety of maintaining the principles aboye explained, even after the death of-the part owner. The steamer had been advertized to leave, on her usual voyage, on the day of Whipple’s death. She was a regular packet, had been taking in cargo on the day. of his death and the day previous, and was heavily, laden. If' the argument of the plaintiff’s, qoqnsel be correct, and Whipple’s death terminated the controlling, power of the majority interest, the steamer should not only-have withdrawn from all future business, britf have disappointed passengers-already engaged, and disembarked the freight shg had already received. Such a proposition certainly involves an injustice to Whipple’s co-proprietor, and a disregard of the interests of commerce.
It is proper also to, ajld that, the boat- made qnly-two trips aftqr the part owner’s, death, and these were in her regular trade as a packet. .
Being therefore of opinion that the continuance of the boat’s employment, in the absence of any objection, by the proper representative of the sue-, pession, was not illegal, the solution of the question arising out of the. explosion, which occurred on her second trip after Whipple's death, is free from, 1 difficulfy. Miller having a right to employ the boat usefully, he is not to bear;the whole burden of that loss, unless it can be attributed to some fault on his part. Under the evidence, iff is doubtful whether the accident, arose from somq defect in the, boilers, or from the inattention of the engineer. But there is nothing proved which vyould authorize us to say that the loss vyas attributable to, any misconduct or negligence on the pai;t of Miller, either in the selection of an-engineer or otherwise. If the same thing had happened in Whipple’s life time, under similar- circumst¡ances, there would be no pretence for inflicting the wholq. loss on his associate.
The explosion injured the bq^t so seriquslyí¡haí¡, she woujd have been entirely pnfit for navigation without repairs. Shannon, who bought Miller's interest, had these repairs made in a prudent manner and in good faith; and the claim, for these repairs, having been submitted by order of the court below to skilful, qxperts, has been ascertained to be reasonable. The outlay was $3,973 66; and, in, the opinion of the experts,, has increased the value of the vessel in a greater-ratio.
As these repairs were necessary and reasonable, and have contributed to the, pommon benefit, and as there is no evidence of qny objection by the representa-, 1jve of the succession to their being made, it would be inequitable to enrich the, succession at the expense of Shannon.
Even if the f)art owners are not tobe treated, int.er s.e, as commercial partner^ [333]*333under article 2796 of the Code, they are at least to be considered as quasi partners, and accountable for the excess which one, in good faith, has advanced for the other. As between the succession of Whipple and the defendant, we entertain no doubt that the share of the former in the proceeds of the boat, should be charged, in favor of Shannon, with one-fourth of the amount of $3,973 66, expended for the repairs. Gardner v. Cleveland, 9 Pick. 336.
It may be, however, that the succession is not solvent; and we think it proper not to express an opinion noy as to the right of Shannon adversely to creditors of the estate, but will leave that question to be settled upon a tableau of' distribution.
It is therefore decreed that, the judgment of the court below be reversed. It is, further decreed that, the said Shannon be recognized as the own er of three fourths-of the steamer Medora, and, as such, that- he receive three fourths of the proceeds-, of the sale of said steamer. It is further- decreed, that the said succession be, recognized as the owner of one-fourth of said steamer; that the said succession, be adjudged the debtor of the said Shannon in the sum of $993 41¿ ; and that the right of Shannon to be paid said sum, by preference out of the share of said succession in said proceeds of sale, be reserved for adjudication upon the tableau pf distribution, said share of said proceeds to be considered as representing the. share of the said succession in the said vessel. And it is further decreed that, the costs of this appeal be paid by the succession; and that the costs of this suit in the court below be paid by the said succession, and the said Shannon, in equal portions.