McCready v. Thorne

49 Barb. 438, 1867 N.Y. App. Div. LEXIS 129

• Court: New York Supreme Court
• Decided: April 3, 1867
• Status: Published

Opinion

By the Court, Leonard, P. J.

It appears- from the evidence, that Capt. Oathcart run the schooner Susan Orleans on shares with the defendants, who were the owners, but the plaintiffs were ignorant of the' arrangement. The referee has so found the facts. The defendant Thorne made this agreement with Oapt. Oathcart,- acting for himself and the other two defendants, who were also part owners, and resided in .the interior, at some distance from the port of ¡New York, where the vessel lay and Mr. Thorne resided. The . other owners expressed no dissent to this employment of the vessel, and they are therefore to be deemed as concurring, and are liable for their share of the expenses, and entitled to a share of the profits. (Gould v. Stanton, 16 Conn. R. 12.)

Where a vessel is run by the master, on shares, it is not a chartering, nor does the master become owner for the time being. The plaintiffs were justified in considering him clothed with the usual authority of a master, especially as Mr. Thorne indorsed the action of the captain in-dealing with the plaintiffs, before they gave him credit.

Under these circumstances the master can bind the vessel and her owners for supplies and necessaries furnished.

Captain Cathcart testifies, in substance, that the money advanced to him, and expended, by the plaintiffs was for the account of the schooner. The plaintiffs rendered him an account, and he certified it to be correct. There is nothing calling this evidence in question, except the failure to be able to state, at the time he testified, after the lapse of several years, what the money was expended for. The fact that he certified to its correctness, when the account was fresh in his recollection, is pretty good warrant for him to testify that the money was advanced by the plaintiffs for the account of the schooner, and sustains the facts, in this respect, as found by the referee. The items are such as to indicate a probability that they were necessary expenditures, so far as the articles were paid for directly by the plaintiffs. How the captain expended the money paid to -him by the plaintiffs, is not detailed; but the disbursement of it for the vessel, made by him, is not impeached, except by his inability to state it, as before remarked.

There appears to be an error in the computation of interest, amounting to $9.40. This amount the plaintiffs must' remit.

[New York General Term, April 3, 1867.

The judgment should be reversed, and a new trial had before the referee, unless the plaintiffs within twenty days remit the said sum ; and in the event of their so remitting the amount,’ the judgment should be affirmed, with costs.

Leonard, Sutherland and Ingraham, Justices.]