Trask v. Jones et al.

6. The captain, as such, from the peculiar character of his agency and duties, has the right in his own name to collect the freight and to take all proper and necessary steps for that purpose.

6. Brown being thus entitled to collect and receive the freight, both as captain and owner, by the instrument on the bill of lading, agrees to collect the freight for the carriage of the goods for Merritt & Trask, and to pay the same over to them or their order, and thus became their agent.

8. If A, being creditor of B, agrees with C to collect the amount due and pay over the same to C, the latter is the assignee of the debt.

9. At common law, and prior to the Code, in the case last named, C could not maintain an action in his own name without a promise on the part of the debtor to pay C, the assignee; but, under the Code, the rule is changed, and the action must be brought in the name of the real party in interest.

10. The assignment to Merritt & Trask of the freight in question was made by Brown, by and with the knowledge and consent of Codman, the other half-owner.

The plaintiff is entitled to judgment on the verdict.

Luther R. Marsh, for defendants.

I. The plaintiff shows no title to the freight, if a claim of freight was established, and has no right to maintain the action. 1. There being another legal owner, Codman, and also an equitable owner, Schoyer, the master had no legal right to assign. (3 Kent's Com., 8th ed., 221, et seq., 171; 12 Conn. R., 489.)

2. The alleged assignment consists in a mere acceptance, by the master, of an order indorsed upon a copy of the bill of lading, drawn to the order of Merritt & Trask, requesting him to pay a specific amount, described as "freight on bill of lading, of which the within is a copy," and on its face addressed to the master at San Francisco. It does not purport to be an order upon Mr. Jones, nor any person owing or having funds, and it is a mere bill of exchange and personal promise of Brown, and it lacks every requisite, either of an assignment or an appropriation of funds not collected. (Rogers v. Hosack's Ex'r, 18 Wend., 319, 334; Hoyt v. Story, 3 Barb., 263; Dickenson v. Phillips, 1

Trask v. Jones et al.

Barb., 454, 458; Kelley v. Mayor of Brooklyn, 4 Hill, 263; Hawley v. Ross, 7 Paige, 103; Malcolm v. Scott, 3 Hare 39.)

3. No action could be maintained against the owners upon this as their acceptance. The prefix "Capt." in the address is merely descriptive, (2 Seld., 168; 10 Wend., 87; 11 How. Pr. R., 11; id., 36,) and it is not added to his signature.

4. No right to collect freight was relinquished on the part of the owners. Nowhere is there a pretense of direction or authorization by anybody to Mr. Jones to pay to any one but the owners. There is no privity with Mr. Jones. An agreement by the owners to pay over the amount received for freight, of itself, would imply that it was still to be collected through them, and could constitute no appropriation. (Dickenson v. Phillips, and other cases, supra; Marine and Fire Ins. Bank v. Jauncey, 3 Sand., 264; Winter v. Drury, 1 Seld., 525; 3 Sand., 263; Cowperthwaite v. Sheffield, 1 Sand., 416, 449; 3 Comst., 243, 248, et vide 4 Hill, 263; 3 Comst., 251.)

5. If the indorsement were even an equitable assignment, which it is not, the action should be brought for equitable relief, and the owners of the vessel made parties, so as to protect the defendants against the legal title, especially when there is a dispute as to the extent and validity of the assignment. (Story Eq. Pl., 153; Cases supra, and 8 Price, 269; 1 Jac. & W., 506; 5 Maule & Sel., 549.)

6. No freight has been earned, and the right to freight was inchoate and incapable of assignment. (Otis v. Sill, 8 Barb., 102; Bank Lansingburgh v. Crary, 1 Barb., 551; Field v. The Mayor, 2 Seld., 179; Robinson v. Macdonnell, 5 Maule & Sel., 228.)

7. It is not now sought to recover upon the bill of lading upon which the indorsement was made, and the indorsement could transfer no right of action independent of the bill. (Battle v. Coit.)

8. Brown's coownership is not good foundation for an authority to assign. He could not divide the cause of action by assigning his interest, nor could he assign his coöwner's interest. (2 Seld., 179; 5 Wheat., 277; Hyde v. Stone, 9 Cow., 230.)

II. The complaint was upon a written express contract, and it is evident there was an express contract. A recovery upon an implied contract was inadmissible. (Ladue v. Seymour, 24 Wend., 62; Smith v. Smith, 1 Sand., 208.) The defendants came pre

Trask v. Jones et al.

pared to disprove this express contract, and was unprepared with proof as to a quantum meruit. The objection was repeatedly made on the trial.

III. No ground for recovery upon a quantum meruit is established. It was never pretended that Mr. Jones engaged freight upon a general agreement.

IV. A fraud was practised upon Mr. Jones in this matter; the lumber would not have been sent at ordinary rates for other cargo; he made a contract with the advertised agent, without which it could not have been taken; through no other channel or means was any authority obtained for carrying the lumber; bills of lading were left at the advertised office, with this advertised agent, according to the custom of shippers, and this agent took no exception, nor did any one, to the bills agreed upon, but frequently promised that they should be formally signed, and the shipper, Mr. Jones, was not liable upon any other agreement than that made with such agent.

A new trial should be ordered.

BY THE COURT-BOSWORTH, Ch. J. Henry S. Brown, the master, and a part owner of the Clarendon, testified that Raphael Schoyer had agreed, before the departure of the ship, to purchase her for $25,000, and had paid down, in cash, $8,000, and was to pay the other $17,000 on her arrival at San Francisco. That being paid, the voyage was to have been his own.

The ship-chandlery and stores furnished by Merritt & Trask, to secure the payment of which the claim in question was, or is claimed to have been, assigned, "were ordered by Raphael Schoyer." They were, of course, so ordered with the knowledge of Brown & Codman, the owners who had made this contract to sell her.

Codman, Brown and Schoyer were present when the transfer (so called) of the freight in question to Merritt & Trask was made.

It was admitted by the plaintiff that an advertisement was published from the 29th of June to the 19th of September, 1850, in the Journal of Commerce, and from the 17th of July, 1850, till the 19th of September following, in the Courier and Enquirer, to the effect that "shippers who have engaged freight" (in the

Trask v. Jones et al.

Clarendon) "will please send it on board without delay, together with their bills of lading. For balance of freight apply to R. R. Hunter, 80 Broadway, J. Belknap Smith, 88 Wall street, or to the captain or agent on board, at Pier 4, North River."

This constitutes sufficient evidence, prima facie, that Hunter was authorized to make contracts for the carrying of cargo, and the freight to be paid therefor.

Exhibit "J" is proved to have been written by Hunter. That furnishes some evidence that he agreed the house should be carried for one-third of the net proceeds of a sale of it.

If Schoyer had paid the $17,000 on the arrival of the Clarendon at San Francisco, so that the vessel and the voyage would have become his, I think it cannot be doubted that the evidence given and excluded would have established, as between him and Jones, such a contract as exhibit "J" imports.

Brown & Codman, having received $8,000 of the contract price, which was to be forfeited on a failure to pay the $17,000, according to the contract, that fact, in connection with the other facts proved, furnish strong evidence that they were willing that Schoyer should, as the party deemed most interested in the result, contract for freight and agree upon the rate to be paid, and allowed him to do so, on the idea that the payment of the $8,000, with the freight to be earned, whatever it might be, would save them from loss, in any event, from the results of the voyage.

The admission by the plaintiff, that the advertisement, exhibit "G," was published in the newspapers named, and for the periods stated, must be regarded as an admission that it was published with the knowledge and assent of Brown & Codman as well as of Schoyer, and that they had conferred upon Hunter the authority which it imports.

Exhibit "G" implies that it was expected the shippers of goods would prepare the bills of lading to be signed, and the captain swears that they generally filled them up.

Bills of lading, filled up by Jones, were sent by him, long before the Clarendon sailed, to the office of the advertised agent, with whom he had arranged the rates of freight to be paid. The defendants were not permitted to show, either what Hunter, the advertised agent, or Schoyer, the equitable owner, said in respect thereto.

Trask v. Jones et al.

There is no pretense that Jones had any communication with the master as to the shipping of the goods or the freight to be paid, or that the master or any one in his behalf or on behalf of the legal owners intimated to Jones that the property would not be carried on the terms agreed on by Hunter, although the master was advised by the bills of lading which Jones sent to be signed what he understood or claimed the contract was.

I think that the evidence given as to the authority of Hunter to act for the ship in the making of contracts for carrying merchandise is sufficient, unexplained, to bind the owners, and that the contract he made must be deemed to be the one on which the goods were shipped by Jones, and on which the owners agreed that they should be carried to San Francisco.

The advertisement, exhibit "G," holds out Hunter, Smith, and the "agent on board at Pier 4, North River," as possessing the same power as "the captain," in respect to contracting for freight for the carriage of goods on the Clarendon from New York to San Francisco.

This view makes it necessary to grant a new trial.

What the rights of the parties, growing out of the sale of the cargo, may be, assuming the contract for the transportation of the goods to be such as the answer alleges it was, or such as exhibit "J" imports, cannot be determined upon this appeal. The cause has not been tried on that theory; and if the contract shall be proved, on a subsequent trial, to be such as is above suggested, other evidence may be given which will so vary the case from that presented by the present appeal as to render any principles, applicable to the case now made, irrelevant to that which may be finally established.

We are inclined to the opinion, however, that, if it shall be made to appear that anything was earned by the carriage of these goods which the defendants are liable to pay, the present plaintiff is entitled to receive it, if it shall also be made to appear that Merritt & Trask had furnished supplies for the ship while in this port which went to her use, and that the master accepted their order, with the knowledge of Schoyer and Codman, and with the intent to appropriate thereby the freight, to be earned by the carriage of the goods in question, to the payment, pro tanto, of their claim for such supplies.