Dodge v. Lean — 13 Johns. 508

Majority

p. 508

Dodge against Lean.

Headnote

Some! surety shippedooboard the vessel shall proceed opon the voyage, and gwy»» they pay tothejr demnity* in case se?tsthl!evessei reencementCOIo'f onDeryaEcánnot tion for money cdd agaifisvele advauced:.

where, m shipping articles of Ionmbas Signed acrtumnhhad-^. but timreUs’no dedMto’theeí deHaking’Vis TOitiV^iSte ftaudsflpl thi pndertekmg as

IN ERROR, on certiorari to the justices’ court in the city of New-York.

The plaintiff in error brought an action against the defendant in error in the court below, and declared against him as surety tor breorge Jtiefnch and George Chapman, on á cértáln voyage, an(^ demanded forty-dollars, On the ground that the said seamen not proceeded on- that voyage. The' declaration also con-tain^d a count for money had and received. At the tidal it apPeared, that-the seamen above mentioned, had first engaged themselves on board óf the schóóner Juliet, for a voyage to Peters• burgh, Virginia, and baelc,’.and that the defendant had received ten dollars advance wages, for each of them in that voyage, he their security; that the voyage whs afterwards.changed t -i t'c>y the owners, with the consent of all the parties, and a new yaSe substitute'd; that the two sailors signed two shipping axtibies,- and ihat the defendant became surety, by signing his naine opposite to the names of the sailors, in the. column headed “ sureties,” and received the further sum of ten dollars for each °f them, making, in all, forty dollars, received on account of the shipping articles, ¿S- security therein. It also appeared, that the words “ securityyntil the vessel sailed” were written after name 0£ the defendant, in .the column headed “> sureties,” by the plaintii^ after thé defendant had signed his name, and 'without his privity; that the defendant delivered Up the seamen to the captain . of the Juliet, before her departure; that they escaped, and wéré agáin twice successively delivered _ up, by the defendant.; that after each timé, they escaped, and that the vessel finally departed on her voyage without them..

The court below, gave judgment for the defendant, on the .ground that he had hot bqünd hifosélf, as security, by such a wráing/as -was valid within the statute of frauds'.

Van Wyck, for the plaintiff in error.

Anthon, contra-.

The return tó the certiorari in this case is so imperfectly made out, thafit is impossible to understand it, without.

p. 509

referring to the affidavit upon which the certiorari was allowed, From the return it does not appear how, or in what way, the plaintiff had any concern or interest in the transaction. But, looking at the affidavit, it would seem that he was owner of the vessel, and advanced the money. ,It was not, however, advanced by him to the defendant, upon any contract or agreement between them; it.was paid, as advance wages, to the seamen, Her~ rick and Chapman. And it is to be collected from the return, the affidavit, and shipping articles all together, that the money was put into .the defendant’s hands by the seamen for his indem-. nity, for becoming security for them, on the shipping articles. The plaintiff, therefore, could not recover on his money-count. The money could not, in any way, be considered as in the defendant’s hands for the use of the plaintiff. The payment was made to the seamen by the plaintiff, and the defendant received it from them on a contract totally unconnected with the plaintiff. If he has, therefore, any remedy against the defendant, on account of the non-compliance by the seamen with their contract, it must be on his special undertaking as their surety.

To his right to recover on that ground there are several objections. From the return it appears, that when the defendant signed his name in the shipping articles, under the head “ sureties,” it was unaccompanied with any addition or explanation whatever, for what he was surety, nor does the return in any way explain the nature or object of the undertaking. If he Was surety that the seamen should be put on board the vessel,he fulfilled his undertaking. The words written under the defendant’s name, “ surety until the vessel sails,” appear to have been written by the plaintiff himself, after the defendant had signed his name, and without his privity or consent. They müst, at all events, be rejected, if they do not totally destroy the instrument, so far as respects the defendant: and, rejecting these words, there is no proof that the defendant has failed in his undertaking as surety for the seamen. But the defendant’s promise required a note or memorandum in writing, within the statute of frauds. It was an undertaking for the default of others ; and his bare signature, under the word surety, was not a sufficient memorandum. It did not, in any manner, show what his agreement was, or for what he became surety. The. memorandum ought to state, substantially, what the undertaking of the surety is. The judgment below must, accordingly, be affirmed.

Judgment affirmed.