The merits in this case are with the libellant, and I think that the decree below is maintainable upon principles of law. I lay out of view the mortgage given upon the vessel, and put the decision upon the original indebtedness.
The per centage which French agreed to allow the libellant for fitting out the vessel and procuring freight and passengers for her voyage to San Francisco, as compensation for the service and responsibility, partakes of the same nature and character as the disbursements made in the course of the service, in furnishing stores, &e., in fitting the vessel out. The reasonableness of the amount is not in question, as French determined that for himself, and it was a matter in which he alone was concerned at the time. For aught that appears, the compensation was the customary rate allowed in fitting up and freighting these California passenger vessels.
As respects other parts of the claim., which, it is conceded, are properly chargeable against the ship, I do not agree with the counsel that each claim must exceed the amount of fifty dollars, in order to bring the lien within the state statute. 2 Rev. St. p. 493, § 1. It is sufficient if the amount in the aggregate reaches that sum.
I agree that Simes & Huffier had a prior lien on the vessel for the five thousand dollars and interest, the balance of the purchase-money, at the time they resumed the possession of her, and that they were entitled to its payment out of her proceeds, before any distribution to the libellant. But it must be remembered that, when the vessel passed into their hands, under the arrangement of the 22d of November, French had an interest in her to the amount of $7,000, he having paid that portion of the purchase-money. This interest passed into their hands on the re-transfer, and was fairly subject to the charges of the libellant. She was ample security for both demands. Beyond this balance of the purchase-money, Simes & Huffier had no prior lien on the vessel over the libellant; and it is apparent, from the transactions between all the parties, that they were fully aware of his claim at the time of the arrangement of the 22d of November. The libellant had been engaged in equipping the ship and procuring freight and passengers, from the 17th of *217September down to tbe 26th of October, when Simes & Huffer became jointly concerned with him in the business, and I must hold them chargeable with a knowledge of the ■ service he had already performed in this respect, and of the disbursements made and accounts outstanding at the time they became concerned with him. With a few trifling exceptions, his whole account had then already accrued against the vessel; It is true, some evidence was given tending to ¡ show that an account, the balance of which ; amounted to some $386, had been rendered j by the libellant at this time; but it is alto- i gether too indefinite and uncertain to be re- ■ lied on for this purpose. The writings that , were made at the time make no mention of ; it, or of the amount of the indebtedness to the libellant. That the amount now claimed existed at the time, is too well established to be doubted.
What strengthens very much the equity and justice of the claim of the libellant, under the circumstances, is the nature and character of the arrangement of the 22d of November, between Simes & Huffer and French. It not only assigns all the interest ■of the latter in the vessel, freight and passenger money, and authorizes them to sell and dispose of her, and requires them, after paying themselves, to pay the surplus, if any, over to French, but provides, also, that, if the vessel is not sold, they shall appoint an agent at San Francisco, with authority, in case French shall pay the full amount due 'i them or for which they may be liable, to ! make a bill of sale of the vessel to French. ! By this arrangement, the claims of the libel- ¡ lant are not only entirely disregarded, but ¡ the interest of French in the vessel, over j and beyond the lien of Simes & Huffer for i the balance of the purchase-money, is placed ; out of the libellant’s reach. We have seen that he had the next lien on the vessel, and was entitled to have it enforced before any other of the claims of Simes & Huffer. Besides, it is by no means certain that they did not bind themselves to French, by the arrangement of the 22d of November, to pay the claim of the libellant. Among other stipulations, they agree “to settle, and, if they see fit, to compromise, any claims against the said French or said ship, on account thereof.” j | j
It seems to me that the libellant had a valid lien upon the interest of French in the vessel, when it passed into the hands of the claimants on the 22d of November, and that it was sufficient, over and beyond their prior lien for the balance of the purchase-money, to satisfy his claim. They had sold her to French, on the 15th of September previous, for $12.000, and, on the 23d of November, she appears to have been insured at the value of $16,000.
The libellant had no interest in the voyage. He had been employed to fit up the ship and procure freight and passengers, and was concerned only in this service, and in securing his compensation for the same and for his disbursements; and I do not see that he was bound to forego these claims rather than break up the voyage. This was a question for those interested or who had become interested in getting the vessel to sea and in making the voyage — not for the libellant. I see nothing in the case to restrain him from enforcing his rights, even at the expense of breaking up the voyage. French or those who had taken his place were bound to look to this, and to relieve the vessel from the charge.
In every view I have been able to take of the case, I think that the decree below was right and should be affirmed.