King & Mead v. Lenox — 19 Johns. 235

Majority

p. 235

King & Mead against Lenox.

Headnote

Where & ship U noi put «p *° freight, uy theowner9 account; ami ceives goods pérson“’°lhon ófT^pmi¡^himseirihu co'mmLioTs! }¡*e °wn.CT of tneshipisnot iwbie. m rase mem, or for the conduct of the master in reta on tv such goo*,

THIS was an action of assumpsit, brought against the deendant, as owner of the ship called the Ram-Dvloll-Day, to «cover the value of certain goods shipped on board of that vessel, on account of the plaintiffs, and consigned to them, on ier voyage from Calcutta to New-York, in the year 1817.— The cause was tried before Mr. Chief Justice Spencer, at the Wew-York sittings, in April, 1820. A verdict was taken for the plaintiffs, for 1,494 dollars and 75 cents, subject to the opinion of the Court on a case made.

It appeared that the master of the R. on the outward voyige from New-York to Calcutta, received from the plaintiffs a ... 1 quantity of cheese and verdigris, which was shipped as part of , * , ° . lie master s privilege, allowed to lum, as is usual by owners of

p. 236

vessels, and which were sold in C., two-thirds for account the.plaintiffs, and one-third for account of the master; and tl proceeds, deducting the homeward freight and commissii which were received by the masters, were invested in the goo óf the country, packed in a trunk, laden on board of the 1 and consigned to the plaintiffs, at JYe.w- York. No part of tl shipment, outward or homeward, or the freight or commission were entered in the ship’s accounts; but the same were consic ered as part of the master’s privilege. The ship was not general ship, but was wholly laden on account of the owne except the usual privileges allowed the supercargo, master, an other officers. The trunk containing the goods in question we stowed in the cabin of the ship, under the master’s birth, wher he usually stows some part of his privilege. The master diet on the homeward voyage. On the arrival of the ship at New York, the trunk consigned to the plaintiffs was opened at th custom house, by persons appointed by the collector of th customs ; when two shawls, all the pearls, and eight pieces c Choppa Romalls, mentioned in tlie invoice, to recover the val ue of which this suit was brought, were missing.

■ T. A. Emmet, for the plaintiffs.

Wells, contra.

The owner of a ship is bound for the lawfu contracts of the master, when made by him relative to tilt usual employment of the vessel; both on the ground of sucl employment, and of the profit which they derive from it; anc the course of usual employment is evidence of authority giver by the owner to make a contract for them. (Abbott on Ships 3d ed. 113. part 1. c. 3. s. 2.) The plaintiffs, in this case, con' tracted with the master himself, knowing that he received theii goods on his own account, as part of his privilege, and not ii his character of agent for the owners. The contract was no! made by any implied authority of the owners, arising out of the usual course of employment. The ship was freighted wholly by the owner; and the master had no authority from the defendant to receive goods on freight. (Walter v. Brewer, 11 Mass. Rep. 99 . Reynolds v. Toppan, 15 Mass. Rep. 370 .)— We are, therefore, clearly of opinion, that the defendant is entitled to judgment. Judgment for the defendant.

END OF AUGUST TERM.