This is an action of special assumpsit for demurrage of the schooner Leonessa.
The plaintiff was a part owner, sailing the vessel on shares, employing the crew, receiving half of the net earning's, contracting for freight, fixing the rate, signing bills of lading, and having the whole management when absent from home. There was an agent for the owners, but he had no control of the vessel when the bill of lading was signed, nor anything to do with contracts for freight.
True, the plaintiff says he was accustomed when at home to consult the agent about business, and he had a right to direct hinrif he chose. The plaintiff might undoubtedly consult with the owners for their common good, or with their agent. So the owners having the right to terminate the contract with the master not being limited in time, might so do, and so doing might direct the *347master wliat to do, and they might authorize an agent to do the same. But it does not appear that they have done so; nor that they have in any way interfered with the action of the master in sailing the vessel on shares.
Upon the whole evidence, the plaintiff must be deemed as the owner, pro fiac vice, as against these defendants, and as such he is entitled to recover upon the principles settled in Hall v. Barker. The mere advising with the owners or their agent was a matter of courtesy and nothing more. Taking all the declarations of the plaintiff together, we think he meant to be understood as asserting the fact that he sailed the vessel on shares, and had the entire control of its management.
He demanded payment of this claim on the fifteenth day of August, 1867, and must recover interest upon the sum agreed upon as damages from that date. Defendants defaulted.
Walton, Barrows, Danforth and Peters, JJ., concurred.