The judgment of the court (Eustis, C.-.T. being absent,) was pronounced by
Slidell. J.We consider the agreement of the 11th November, 1845, taken in connection with the other evidence in the cause, as establishing a sale by Brown to Pennoyer, of one-half of the steamer, at the price represented by the bills and notes recited in it, and delivered by the vendee to the vendors; and that the reason why the formal bill of sale was not to be executed by the sellers, until the notes and drafts were paid, was for the mere purpose of the vendor’s security. The position of the parties inter se is substantially the same as it would have been, if Brown had, at the time, given Pennoyer, in consideration of these drafts and notes, a formal bill of sale of one-half of the steamer, and taken, simultaneously, a mortgage of the one-half from the buyer, to secure their payment.
That the defendant so interpreted the agreement, is shown by his own conduct; for, in the note of evidence, is an admission by the defendant, that Pennoyer always claimed to be the one-half owner of the steamer, while she was in New Orleans; and this interpretation also accords with the admission of both parties, contained in the note of evidence, that Pennoyer is entitled, as between him and Brown, to a credit for one-half the proceeds of sale of the steamer, which remained after the payment of the New Orleans claims against her, and to a like credit for the amount paid by underwriters; both of which amounts had gone into Brown's hands.
In the note of evidence, we find the following admission made at the trial: “It is admitted by all parties, that immediately after the sale from Brown to Pennoyer, Pennoyer took charge of the steamer, as master, and started from New York to New Orleans ; that on her voyage, she met with bad weather, and was finally brought into New Orleans, where she was repaired at a very heavy expense; *778that she was seized in the United States court, and sold to pay those expenses of repairs. 'By the agreement, Pennoyer became the owner of one-half. Res jjerit domino. The one-half was, from the date of the sale, at Pennoyer’s risk. If the vessel had perished at sea, he would not have been exempted from the payment of the price.
Speaking, therefore, upon the written agreement, and other meager evidence, which has been brought before us, we think Brown and Pennoyer became inter se, on the 11th November, part owners of the steamer; and that the disasters which subsequently befell the vessel, and the judicial sale which resulted from them, whereby Brown was incapacitated from executing a formal bill of sale, did not destroy the defendant’s liability for the price.
It is therefore decreed, that the judgment of the district court be reversed, and that this cause be remanded for a new trial; the costs of this appeal to be paid by the appellee.