Opinion
(December Term, 1832.)
1. For the benefit of trade, the captain of a ship is liable for her disbursements in a strange port, but if he consigns to the person making them property of the owner sufficient to cover them, the consignee, by paying the funds in his hands to the owner, without deducting the disbursements, discharges him.
2. The captain is liable as the surety of the owner, and has, as to him, all the rights of one.
3. The captain when discharged from liability to the consignee cannot affect the relations subsisting between him and the owner; neither by a subsequent payment to the former can he make the latter his own debtor.
4. A master cannot act upon facts which are within his own knowledge.
5. A mortgagee who sells without a foreclosure is responsible for the value of the property sold.
AFTER the reference ordered in this cause ( ante, p. 154) the master filed his report, from which it appeared that the account of Myers Son against the brig William, amounted to $499.82, of which, $50 was charged as having been paid to the plaintiff and $223.14 as "cash paid the custom-house bill." The residue was for pilotage, sea stores, repairs, and commissions; the particulars of the custom-house bill were not given. In an account hereinafter mentioned, Myers Son charge for storage, $48.52, and for bond and permit and duties at the custom-house, $2,523.66; but Myers himself swore positively that no part of the bill for disbursements for the brig were charged to the defendant's account, and they nowhere appeared to have been, unless the custom-house bill was by mistake included in the large item for duties.
Iredell and Kinney for plaintiff.
Gaston for defendant.
The plaintiff, as captain of the brig, had consigned the vessel and cargo to Myers Son, as the property of the defendant, to whom he directed them to account. This was in March, 1816. The cargo sold for $4,774.45, and netted, over and above all charges then debited to the defendant, the sum of $1,994.57. The consignees took up a bill of the defendant's for $1,056.33, drawn in March, 1816, which, with other small matters, left a balance due him of $904.23, which Myers Son acknowledged to him on 22 August following. Early in 1817 Myers Son received another consignment of property belonging to the defendant, which netted him $203.71, and on 21 May of that year they rendered him their account, including that sum and the former balance of $904.23, and charged him with "W. P. Foster's note for sugar in sales per brig William, protested $301.25." This account showed a balance due the defendant of $806.11, which was remitted him on 29 July (230) following. The defendant then sent an agent to Norfolk, where Myers Son resided, to demand the amount of Foster's note, claiming that he was not bound for it, as Myers Son had never informed him of such a note being received for his sugar, and refusing to recognize it as his property. This claim was finally but reluctantly acquiesced in by Myers Son. The plaintiff in a letter to the defendant dated 18 July, 1820, informed him that he had refused to allow Myers Son their claim of $499.82, because they knew he was only the master of the brig, and because they had the owner's property in their hands, and might have paid themselves, and could not resort to him four years after paying over the moneys in their hands to the owner. One of the Mr. Myers proved that after their letter to the plaintiff, informing him of the collection of the bill on the West Indies, and of their charging against it the amount of the brig's disbursements, he applied to them for all the money collected for him, which was refused by them, because, as captain, he, as well as the owner, was liable to them, and that the owner had refused to pay them.
Myers Son had become bankrupt, and had made an assignment of their effects, and it did not appear that the plaintiff had received any payment from them or their assignees.
On these facts, the master charged the defendant with the amount of the plaintiff's money retained by Myers Son, and for this he excepted.
As to so much of the order of reference which directed the master to inquire as to the value of the mortgaged slaves, which had been bought by third persons, he reported that this was the fact as to one only; that the evidence as to his value was so contradictory he could not come to any just conclusion upon it; that in this uncertainty he had, from his own knowledge of the slave, charged him to the defendant at $400, deducting from it $153, at which he was credited to the plaintiff. To this both parties excepted, the plaintiff because it was too low, (231) and the defendant because it was too high.
The first thing to be done in support of Bissell's claim is to establish a debt to Myers. In that view, it might be material to inquire whether a general advance of money to the captain is a disbursement for the ship, without showing the purposes to which it was applied, or at least was to be applied. The item of "custom-house bill" might also need explanation, for of itself it is not sufficient to charge a consignor, who has a right to the particulars, especially when there is a probability, from the nature of the charge and the delay in presenting the whole claim, that it might have been included in other general charges.
Questions might also be raised upon the right of a surety to charge his principal by the acknowledgment or voluntary payment of a debt, barred by the statute of limitations, on which Bozman insists. But as the protection to which Bissell was entitled against this demand has a foundation much more meritorious than mere lapse of time, I do not think it worth while to consider the effect of that.
Has Bissel [Bissell] paid Myers Son? If he has, was he so liable to them as to enable him by paying them to make Bozman his debtor?
There seems to be no reason to doubt that in a port, not the vessel's own, proper disbursements on or for the vessel constitute a demand for which the vessel, the master and the owner are all liable. As to the master, this is a departure, introduced for the sake of trade, from the general principle that he who acts as agent, and is known as such, is not bound personally unless he expressly promise. Whatever may be the grounds of this rule in reference to strangers, as between him and his owner the master is in the nature of a surety. In that character he recovers back from the owner any moneys he has paid, and (232) those whose claims he has satisfied. And in that light he must be viewed by the consignee of the ship and her cargo; at all events, as far as the proceeds of the cargo will serve to satisfy the consignee or indemnify the captain. If the consignee, as well as strangers, has the right to regard the captain in ordinary cases as the owner, because in possession, and another owner may not be found, yet a consignee with funds does know the owner in the most effectual manner. When the master thus leaves behind him the means of paying the debt for which he was liable, and in the hands of the man to whom the debt is due, he feels that he has no right to retain the vessel, and readily gives her up to the owner, thereby parting from the security given him by the law for his indemnity. The consignee can retain his whole demand out of the proceeds of the cargo. Common sense and common honesty say the debt is paid as to the surety. It is not the ordinary case of a creditor getting a security of his own provision. Even then the creditor is bound in good faith to take care of the surety. The relation between them calls for that benevolence. But here the surety himself provides the security. He does it for his own benefit as well as that of the creditor. The creditor cannot part from it to the prejudice of the surety. He cannot say he did it by mistake, but must bear the consequences of his own mistake, and ought not afterwards to look to anybody but the principal. Bissell was competently discharged, and I think in no court of justice could a recovery have been made against him.
Was he aware of his discharge? Expressly on that ground he refused to pay the demand in 1820, and so informed Bozman. Then could he afterwards pay Myers Son, and make the debt his own? I am now supposing that Bozman owed Myers Son, and that the latter had a remedy against him. Could Bissell interpose? I think not. The connection between them was dissolved. He was cut loose, and had no right nor power to untie Bozman from Myers, for the sake of (233) getting a faster hold himself. Bozman had a right to prefer Myers Son for creditors; he might be able to pay them easier, or to resist this demand altogether when made by them. Having gotten clear, Bissell could not again make himself a party but by a new request from Bozman, like any other stranger. This is not like reviving a debt barred by the statute of limitations, by the acknowledgment of a surety. Here there was no debt remaining as far as concerned Bissell. He was under no obligation, legal or moral, except not to interfere to the prejudice of either party. And that obligation was increased by the refusal of Bozman to Myers Son, of which, no doubt, Bissell was informed, in answer to his letter of July, 1820 — a refusal not founded on the ground that the disbursements had not been made, or had been paid for by Bissell, or anything else which Bissell could know to be false, but on the ground that Bozman had himself paid. And if Bissell did not get that information from Bozman in 1820, he did from Mr. Myers in 1824, before he assented to the arrangement made by Myers Son of his debt. After Bissell was discharged, and he knew it; after Bozman had refused to pay, which he also knew; after the lapse of eight years, for four of which Myers Son had abandoned their claim against Bozman, or not prosecuted it, it was out of the power of Bissell and Myers Son by any act or agreement of their to resuscitate this demand against Bozman, and especially to transfer it to Bissell. But has Bissell paid it, or even agreed to pay it? Myers makes it appear in his books that he did. But the fact is not so. Bissell never assented to that application of his money. They promised a dividend on balance. He rejected it, and demanded the whole. They assigned as a reason for their conduct the refusal of Bozman to pay them. Did that appear to Bissell to be a good reason? Did he think that he and Bozman were both bound, or that the refusal of the latter made him (Bissell) bound? Did he act on such a belief? No. He made no settlement with Myers; took no receipt for the money, no order on Bozman. He gave no acquittance to (234) Myers for so much of his own money, but kept his demand open, as a subsisting one, which he would have rendered available but for Myers' insolvency. When the present controversy arose, he thought he could use it to more advantage in it, and, therefore, pursued his claim against the others no further.
Upon no ground can the claim be sustained, and the exception must be allowed.
As to the other exception, the master says that he could form no satisfactory opinion of the value of the slave upon the testimony of the witnesses, because they differed so widely; and he fixed the value upon his own knowledge. That was not a proper ground for him to proceed on, for we cannot act on it, and must decide upon the evidence. Upon the weight of that, the Court ascertains the value to be $200. That Bozman objects to, because he thinks the other party confined to $153, the price bid. The Court has already said the effect of that sale under the act of 1812, whatever it may be, is waived by the cross-bill to foreclose. We must now look upon it as a sale by Bozman himself; confirmed, indeed, by Bissell, by not making the purchaser a party to this bill. But how far does that confirmation go? Only to the title, not to the price. Suppose the slave sent to distant parts, so that Bissell could not reach him, or sold to a person without notice. The mortgagee who sells without a decree must be sure to get the full value, for he is parting with another man's property. The expression, "price or value," used in this case before, meant that if the price exceeded the value, Bissell was entitled to it; if less, then to the value. That is the risk a mortgagee must be made to run, to keep him straight.
PER CURIAM. Decree accordingly.