Loftus v. Clark — 1 Hilt. 310

Majority

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Michael Loftus, assignee of William Scotsmer, v. William T. Clark and David Deane.

Headnote

A written instrument for the payment of money upon a contingency, may be transferred by delivery merely, although drawn payable “ to order.”

Buell an instrument is not negotiable, and no indorsement is requisite to transfer the title. A delivery, with intent to vest in the party claiming under it all the payee’s interest in it, is sufficient.

The act of March 26, 1819, prohibiting justices’ courts from exercising jurisdiction, in actions for seamen’s wages, deprives the justice of jurisdiction, only when the action is against the owners, master or commander of a ship or vessel upon a contract made with the owners, commander or master.

'Ule prohibition does not apply to an action on a contract of a shipping agent to pay •^advance wages on the seaman’s proceeding to sea in the vessel, pursuant to the shipping articles.

Appeal from a judgment of tbe Second District Court. Tbe action was brought to recover upon an instrument in tbe following form.

“ New York, Nov. 15,1856.

“ We promise to pay William Seotsmer or order, forty dollars, being tbe amount of bis advance wages in tbe ship called tbe Arabia, provided -be proceeds to sea in said vessel according to tbe shipping articles.

“ ($40.) Clark & Deane, 183 South street.

“ Per JOHN Wilson.”

sIt appeared tbat defendants kept a skipping office, and were engaged in tbe business of skipping seamen. Seotsmer was a seaman, and was boarding witb tbe plaintiff, who kept a sailors’ boarding-house. He shipped for tbe Arabia, at Clark & Deane’s office, and received tbe above due bill for advance wages, and afterwards delivered it to tbe plaintiff on settling accounts witb bim for board. There was evidence tbat Seotsmer bad gone on board the ship to sail in her.

On tbe trial, after tbe evidence for tbe plaintiff was closed^

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defendants’ counsel moved for a nonsuit on tbe ground that there was on indorsement of the instrument in suit by Scotsmer to the plaintiff. The motion was denied. The justice rendered judgment for the plaintiff, and the defendants appealed. The notice of appeal stated, among other grounds, the objection that the justice had no jurisdiction of the action, it being for seamen’s wages.

Alanson Nash, for the appellants.

I. The district court has no jurisdiction of an action brought by a seaman or mariner, or other person belonging to a ship or vessel for seamen’s wages. Sayre’s Laws, p. 52, chap. 71, 82 ; Laws of 1819 ; Davies’ Laws, 629. When an assignee takes claim, he takes it subject to all the equities and burthens of the original party. *

II. The plaintiff cannot maintain this action; the due bill is piayable to William Scotsmer, or order, and is not indorsed, and, therefore, is not negotiable. The only evidence of any delivery to the plaintiff in this suit is, that Scotsmer handed it to the plaintiff, without proof of any authorization to collect it.

III. If the plaintiff is successful in this matter, William. Scots-mer, the pretended assignor of the plaintiff, may sue Clark & Deane, the defendants here, and they could not plead this present suit as a bar, for this same sum of money.

H. W. Channing, for respondent.

The instrument upon which the plaintiff sought to recover was not a promissory note. The undertaking in a promissory note oi bill of exchange must be, to pay absolutely and at all events, and must not depend upon a contingency. Carlos v. Fancourt, 5 T. R. 482 ; Kingston v. Long, Bayley, 13. It was a .special agreement to pay Scotsmer $40, being the amount of his advance wages in the ship called the Arabia, provided he proceeded to sea in that vessel according to the shipping articles. In promissory notes and bills of exchange, a consideration is

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presumed and need not be proved, but bere tbe consideration is expressed upon tbe face of tbe instrument, and, to establish tbe defendants’ liability, it was necessary to show that Scotsmer went to sea in tbe vessel. Tbougb made payable to Scots-mens order, it was not necessary as in tbe case of a promissory note, or other negotiable instrument made payable to order, that be should indorse it. Tbe delivery of it, by Scotsmer, to tbe plaintiff, with tbe intent to vest in the plaintiff all tbe interest Scotsmer bad in it, to transfer to tbe plaintiff whatever claim or demand Scotsmer bad, or might have upon it, against tbe defendants, was sufficient to pass tbe legal title to it, and vest it in' tbe plaintiff. Hastings v. McKinley, 1 E. D. Smith, 271. It was shown that tbe plaintiff kept a boarding-house; that Scotsmer boarded with him, and that be gave it to the plaintiff for board, and for an amount which tbe plaintiff bad advanced to him. This was .sufficient to show a good and valid transfer of it to tbe plaintiff.

This was not an action for seamen’s wages, but upon a written instrument by which tbe defendants promised to pay William Scotsmer a certain sum of money, if be would do a certain act. It was a promise founded upon a good and valid consideration. Tbe liability of tbe defendants does not grow out of services rendered to them by Scotsmer, as a mariner, but because they agreed to pay him $40, bis advance wages, if be would proceed to sea in a certain vessel; or if it could be regarded as an action for seamen’s wages, it was not shown that tbe defendants were tbe owners of tbe vessel, and tbe act of 1819 deprives tbe justice of jurisdiction of actions for seamen’s wages, only where the action is against the owner, master or commander of any ship or vessel, upon a contract made with tbe owner, commander or master. Davies’ Laws relating to tbe city of New York, p. 501.

No question is raised by tbe appeal as to the authority of tbe defendants’ clerk to make such a contract on behalf of tbe defendants, or any question as to whether Scotsmer proceeded in tbe vessel according to the,terms of tbe contract. The justice found upon both these points in -favor of tbe plaintiff: and no objection is

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taken as to tbe sufficiency of tbe evidence to warrant bis so finding, except that tbe judgment should have been for tbe defendants, wbicb is not a sufficiently specific statement of a ground of appeal. *