Tallman v. Whitaker

7 Del. 72

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinion

The Court

remarked, that on viewing both of the affidavits and the little disclosed in them, they had some doubts as to the legal sufficiency of the affidavit of defence. But as the defendant denied that he ordered the goods, or authorized any person to order them for him, and the affidavit of the cause of action contained only a copy of the account of the plaintiff, which was against the schooner and owner, without disclosing the authority on which they had been furnished, or that they were for the vessel, or were used upon her, they were not satisfied to order judgment to be entered for the plaintiff upon it, and thus to dispose of the case in this summary manner without a further hearing in regard.to the matter. As the case stood, the presumption perhaps would be, that the articles were furnished on the order of the captain; but if so, whether he had an implied authority as captain to order these goods for the vessel, which would appear to have been materials for rigging her, without the actual knowledge and sanction of the owner, was a question on which they would express no opinion at that time. It was enough to say, as the case stood, they had some doubt whether the defence disclosed in the affidavit of the defendant was not sufficient, and in accordance with the settled practice of the court in such cases, they must refuse the motion for judgment, and suffer the case to go to pleading, issue, and trial at bar in the usual manner.