As it appears by the report of the auditors in this case, that the articles for which this suit was brought went into and became part of a vessel, a part of which was afterwards sold by a portion of the defendants, who received the avails, and the residue was used by the other defendants for more than a year before this action was commenced, it is not easy to see why a promise to pay for them was not found as a fact, relieving the case from any question of law as to the right of the plaintiffs to recover. The non-assent of some of *61the part owners of the vessel to the particular way in which she was employed, would not have affected the presumption.
But the record presents the question whether the master of the vessel, under the circumstances detailed in the report, ought in law to be regarded as the agent of the owners, in procuring the articles in question.
Whether a vessel is in a foreign or a home port, the master has a right to charge the owners with such expenses for repairs as the interests of the owners render it necessary that he should incur. There is a legal presumption in such cases that the owners will approve of the act of the master. Webster v. Seekamp, 4 Barn. & Ald., 353. Johns v. Simons, 2 Ad. & El. N. S., 425. 3 Kent Com., 171, and notes. If the owner, or his agent for the purpose, is either at the port or at such a convenient distance that the master can have communication with him without such a delay as would materially prejudice his interests, the authority does not exist. 3 Kent Com., 171, 172.
We see no necessity for examining the subject further to find that the master had authority to order these articles. It was necessary that they should be procured immediately. The vessel could not leave port without them. A single day’s delay would damage the owners more than the whole amount of the bill. Some of the owners lived in Philadelphia, some in Hartford, and some in Middlesex county, Connecticut. They were thirteen in number. None of them individually could order the repairs or authorize the master to do it. He would be obliged to communicate with and procure the assent of at least a majority in interest. Notwithstanding all the • modern facilities by railroad and telegraph, this could not be done without much trouble and the loss of several days’ time. To suppose that any of the owners would insist on such a course would be to impute to them a total disregard of their own interests. If it is urged that the owners had an agent in New York, where the repairs were made, the answer would be that it does not appear that he had any right to order repairs, and if he had, as the work was done under his own eyes, the presumption would be that he approved of it. It appears also that this *62agent concurred with some of the other owners in allowing this bill of repairs as a charge against the vessel.
Another ground of error claimed is, that the auditors did not decide that this bill had been paid. They found that it had not been paid unless certain transactions detailed in the report amounted in law to payment. It appears that Wood-ruff & Beach, one of whom was president and the other treasurer of the corporation which brings this suit, agreed on a certain occasion, when they and some of the other part owners were negotiating a sale of their rights in the vessel, to assume this debt, for the purpose of providing that all the debts of the vessel which might constitute an incumbrance upon her should be paid, or that the vendee should be saved harmless from them. There were some other circumstances entitled to some weight on the question of payment as a matter of fact. But with them we have nothing to do. It is evident that there was nothing done which could in law amount to a payment. Woodruff & Beach and the Woodruff & Beach Iron Works were distinct parties. The plaintiffs were no party to the agreement between the part owners of the vessel. The object of the arrangement was merely to clear the vessel from an incumbrance, and so far it was probably effectual.
But there is one error in the record which is so manifest that it must have arisen from some mistake or misapprehension. We can not suppose that the auditors would knowingly have refused to allow to the defendants a credit, which it was agreed by the parties in their presence that they should have; nor can we suppose that the court understandingly refused to hear the evidence of such an agreement, which was distinctly alleged in the remonstrance. Such an admission in the presence of the triers would constitute an estoppel, to disregard which .would be manifest error. 1 Greenl. Ev., § 186.
The judgment therefore must be reversed unless the plaintiffs will remit the amount disallowed, to wit, $25.10, and retain the judgment for the balance.
In this opinion the other judges concurred.