This cause was tried by a jury, and a verdict rendered for the plaintiff. The defendant's counsel moved, at the special term, for a new trial, which motion was denied. On appeal to the general term this order was reversed, and a new trial granted. It was held, in Sanford v. The Eighth Avenue Railroad Company (23 N.Y. 343), that when the trial is by jury we have no power, under the existing rules of law, to review any question of fact determined in the subordinate courts. In this case, therefore, we should be obliged to affirm the order granting a new trial if that order could stand consistently with any view to be taken of the evidence given at the trial.
In that case I infer that no questions of law were involved; that the motion for the new trial was made on the facts only. In this case there are questions of law as well as of fact, and we must examine both before we can reverse the order of the general term.
The defendant's counsel objected to evidence offered on *Page 239 the trial by the plaintiff in reference to the transactions between Pelletier and Babbridge Valentine, and between Pelletier, Overman Grunn and Wheeler, and his objections were over-ruled and the evidence was received. The evidence was competent, and therefore properly admitted. The questions for the jury to determine were, 1st: Was Wheeler owner and in possession of the vessel when the order for the sails was given by Pelletier? If he was owner, then, 2d. Was Pelletier his agent in ordering the property?
The defence denied even nominal ownership by the defendant when the sails were ordered, but insisted that Pelletier was the real owner, and the nominal title at that time was in Babbridge Valentine. And that after the defendant obtained the nominal legal title, Overman Grunn had an interest in the vessel, and in the liabilities existing against her. It was impossible to ascertain who was liable for supplies, without an inquiry into the transfer of and dealings concerning the ship by the several parties connected therewith. When the facts were all out it might be that many of them were irrelevant or otherwise incompetent, and should have been stricken out. No motion to strike out was made, and the defendant cannot now complain if such matters are now found in the case. It was impossible when the evidence was offered, for the court to separate the legal from the illegal, and it was his duty therefore to admit the whole, subject to the right of the counsel to move to strike out that which was illegal.
The defendant's counsel moved for a non-suit, which motion was denied. When the plaintiff rested the second time there was evidence sufficient to carry the case to the jury. The defendant was shown to be the legal owner; he had hired the captain, agreed to pay for supplies, and Pelletier had given evidence which might be construed as proof of authority from the defendant to him to order the sails from the plaintiff. It is true, much of this evidence related to a day subsequent to the order. But the bill of *Page 240 sale of eight-ninths of the vessel from Pelletier to the defendant, bears date the 31st December, 1852, while the order for the sails was not given to the plaintiff until about the middle of January following. If the plaintiff was found to be owner from the 1st January, the other evidence in the case might justify a verdict for the plaintiff. It is sufficient for our present purpose that there was some evidence tending to prove the defendant liable.
If I am right in regard to these legal questions, it follows that the general term must have granted the new trial on the evidence; and I propose to inquire very briefly, whether within the rule laid down in Sanford v. The Eighth Avenue RailroadCompany, cited supra, in any view of the evidence the order granting a new trial can stand.
While it is true that there is some evidence to support the verdict of the jury, it is equally true that a verdict for the defendant would have been not only justified, but if rendered, could not have been set aside as against the weight of evidence, or as unsupported by it.
It was indubitably established that Pelletier was the real owner of the vessel, both before and after the transfer to defendant; that the defendant had no interest in his or her earnings; and that they belonged to Pelletier, or those to whom he transferred them. Under these circumstances, the defendant was not liable for supplies, unless purchased by him, or by some person authorized by him. (Abbott on Shipping, 32; Leonard v.Huntington, 15 J.R. 298; Wendover v. Hogeboom, 7 J.R. 308; and cases cited in note to page 33 of Abbott on Shipping.)
When supplies are furnished to a ship, the person furnishing them has three remedies to which he may resort in order to collect the price. 1. He may enforce them against the ship. 2. Prosecute the owner or person in the actual possession and bound to furnish supplies; and 3. He may sue the person ordering them. If the vendor will not adopt the first of these three, an action must be brought against a party liable to him. *Page 241
We have seen that mere ownership alone does not subject the owner to liability, and for very obvious reasons. It is competent for the owner to charter the ship to another, and while the person hiring is in possession and use of the vessel there would be no justice in subjecting the owner to liability. As well might the owner of a house be liable for repairs or supplies while it is occupied by a tenant. (Cutler v. Thurlo, 20 Maine, 217; Abbott on Shipping, 35 and note.)
The hirer is pro hac vice owner, and alone liable. (Cases cited supra; Sherman v. Fream, 30 Barb. 478; 8 John. Rep. 272.)
Upon the same principle it has been held that a purchaser of a vessel, after his contract of purchase, and before the title is actually transferred, is liable for supplies, if he is in possession of her at the time, and the person in whom the legal title is, is not liable. (Hussey v. Allen, 6 Mass. 163;Portland Bank v. Stubbs, id. 422; Mulden v. Whitcock, 1 Cowen, 290; 11 Mass. R. 34.)
The question is then brought down to this: Was the defendant in the actual possession of the vessel at the time the sails were ordered; or was Pelletier his agent, and as such, authorized to bind the defendant? If the evidence does not support either of these propositions, then the new trial was properly granted.
There is some proof of possession, not of actual occupation by the defendant, but of acts of ownership after the transfer to him by Babbridge Valentine, but none as early as the middle of January. The agreement between B. V. and the defendant for supplies, bears date the 28th January, 1853. The bargain with the captain was on the 8th February. The defendant's claim to the vessel made in the United States district court for the southern district of New York, was sworn to on the 28th February. The oath of ownership was taken on the 4th February. Aside from these acts, there is no evidence that the defendant had anything whatever to do with the ship. The learned *Page 242 justice who tried this cause instructed the jury that they might take these facts into consideration in passing on the question whether the defendant was in the actual possession of the ship. The evidence was competent upon that question. But it was met, and I think overcome by the undisputed evidence of both the defendant and Pelletier, that the defendant was not in possession, and did not control the ship.
Upon the other proposition, whether Pelletier was authorized to bind the defendant for supplies, I think the evidence is still more unsatisfactory. The only evidence in support of it, is the statement of Pelletier that "after this transfer (that of the title to the defendant I suppose is meant), it was understood between the defendant and me that I was to go on with the vessel, and get her ready for sea." From this statement, the inference as already suggested, might be drawn, that he was thereafter acting as agent of the defendant; but the same witness repeatedly says that the defendant had no interest in the vessel or her earnings. This being so, it would be doing violence to language, to say that the witness intended to testify to an agency. On the contrary, he says that he ordered the sails, wanted credit, and offered his note, which the plaintiff refused.
The proof in the case establishes the liability of Pelletier for the property. He was the actual owner of the vessel, entitled to all her earnings, and was the only person who was interested in furnishing supplies. It was Pelletier who ordered the goods, whose responsibility was relied on, until he became insolvent, and then the attempt was made to make the defendant liable.
I think the new trial was properly granted, and, under the stipulation, judgment absolute rendered in favor of the defendant, with costs.
All the judges concurring, judgment affirmed. *Page 243