On Rehearing.
Keith, P.A decree was rendered in this case on, the 13th of June, 1907, which upon a petition to rehear was set aside and the cause reargued. We refer to the opinion then filed for the statement of the case, and will proceed to the consideration of the point presented in the petition for rehearing, which is as follows:
The court, in its former opinion, after deciding that the parties were tenants in common, said: “So far as Barnett and Twohy, respectively, made payments in excess of their own liability to persons who had no notice of the special agreement by which the liability of the co-owners of the vessel are limited to his own share of the expense, they would be entitled to contribution from the other owners, for as a general proposition it seems that as a part owner of a vessel in undisputed possession will be regarded as having implied authority to bind the other owners for things necessary for the vessel and its employment, unless there is something in the evidence (and there is not in this case) to show that such implication of agency is contrary to the fact.”
It is urged in the petition to rehear, that the court had overlooked the fact that the supplies furnished and expenses incurred were in the city of Korfolk, where all of the parties resided, and that a part owner could not bind his co-owners under such circumstances.
*412This is not a strictly accurate statement of the case, for the vessel for which the supplies were furnished and upon which the expenditures were made, was not in the home port, hut lay stranded upon the beach some miles distant from the city of Norfolk. The same principle, however, we concede, should control, because all of the parties concerned resided in the city of Norfolk, the vessel upon which the expenses were being incurred was only a few miles distant, and within easy and constant access; so that it comes, we think, within the influence of the principle which applies to vessels in a home port.
In 25 Am. & Eng. Enc. L., p. 885, speaking upon the subject of “Supplies and Repairs,” it is said: “The true rule seems to be, that to enable one part owner to bind another for supplies and repairs, something more than the fact of part ownership and the reasonableness or necessity of the supplies and repairs must appear. There must be an agency of some sort, or such circumstances as to preclude the part owner whom it is sought to charge from denying his liability. As a general proposition, a part owner of a vessel in undisputed possession will be regarded as having implied authority to bind the other owners for things necessary for the vessel and its employment, unless the evidence discloses something to indicate that such implication of agency is contrary to fact. The authority of one whose possession is acquiesced in to act to this extent for all is the proper inference unless in a particular instance something appears to limit or disprove it.” And in the foot-note to this passage, it is said: “The rule has been laid down that a part owner of a vessel, who has not the general authority of a'master nor the special authority of a ship’s husband or agent, cannot procure repairs and supplies at the port where his co-owners reside, and bind them without their consent.”
In this case, there was no one clothed with the general authority of a master, nor with the special authority of a ship’s husband or agent, but such agency as existed grew out of the implied authority of one part owner to bind another.
*413In Spedden v. Koenig, 78 Fed. 504, Judge Brawley, speaking for the circuit court of appeals, says: “In the home port, where all the owners reside, the managing owner, though registered as such at the custom house, cannot, merely by virtue of that relation, order supplies and bind his co-owners to a personal liability therefor; nor do they become liable merely because the creditor, on his books, charges the supplies against the vessel and owners.” This case was approved in Woodall v. Dempsey, 100 Fed. 653.
Hughes on Admiralty, at p. 299, states: “It is well settled that the managing owner cannot bind the others in the home port unless express authority be shown, for the basis of his power is the necessity of the vessel, and in the home port the owners can easily be consulted.”
Hor do we think there was anything in the conduct of the appellants which estops them to deny the authority of their co-owners to bind them for expenses incurred after August 22, 1904. On that date Briggs addressed the following letter to Barnett, Cacace and Twohy, co-owners with him of the ship:
“Gentlemen: As explained to Mr. Barnett and Mr. Twohy, I have decided not to gamble any more on the ship ‘Hyde,’ and desire to withdraw from further expense connected with getting the ship off of the beach, and that all wreckage and other tools we own that may be gotten off the ship be brought in and sold and the ship sold for the best price possible, each to receive their proper proportion after the sale and paying all expenses up to this date.
“If, however, this is not agreeable to the rest, not desiring in any way to stop you from the proposed plan of getting- the ship off the beach, I would be willing to have my interest stay in the ship on the condition that no more calls are to be made on me for the expenses of getting the ship off, and, if you fail in the undertaking I would lose all my interest, but, if the ship came off, my interest to be in proportion to the money paid in by myself and the actual cost of the ship to get her off.
*414“If, on the other hand, you care to make me a proposition by taking an inventory of what there is salable about the ship and the ship itself, and taking from same.the outstanding debts to date, it would be perfectly satisfactory to me to settle on this basis. Yours very truly,
“GEO. S. BBIGGS.”
Here is an explicit notice to his co-owners that he did not mean to be at any further expense with respect to this ship. It is equally plain from the letter, however, that it was not an abandonment of all interest in the ship. If his co-owners saw proper to make further expenditures, then the interest of Briggs was to remain, but to be in the proportion the money paid in by him bore to the actual cost of floating the ship. It is true as urged by appellees, that after that letter was written Briggs took an interest in the efforts to float the ship; and it also appears that after the date of that letter hopes were from time to time entertained of speedy success in the enterprise, and under the influence of the expectation that the ship would be speedily floated it appears that Briggs refused to part with his interest in her; but this conduct on his part cannot be construed as contradicting or in any degree modifying the terms of his letter of the 22nd of August, 1904. His conduct is easily explicable by reference to those passages in his letter from which it clearly appears that he did not mean to abandon his interest in the ship, hut to claim his share in her, in case his co-owners succeeded in their enterprise, and afforded no just ground for holding him liable to his co-owners upon the doctrine of implied agency.
It was held in the opinion heretofore rendered, that Barnett and Twohy had no cause of action against Briggs and Cobb, on account of payments made by them to Cacace on account of sums alleged to be due to him from Briggs and Oobb, as those payments were voluntary and furnished no cause of action, either at law or in equity. It was further held, that such payments gave no right of contribution in equity; and we *415now hold, for reasons already stated, that Barnett and Twohy, as co-owners, had, under the circumstances of this case, no authority to hind Briggs and Cobb, as their agents, and that Briggs and Cobb are not estopped by their conduct to deny the agency.
The decree heretofore rendered will be modified so as to conform to the views herein expressed, and in all other respects the opinion heretofore filed and the decree then rendered are approved and adhered to.
Reversed.