King v. Lowry

By the Court, Clerke, J.

This was an action against the defendants, as joint owners of a vessel, for supplies furnished for a voyage from Hew York to San Francisco. Judgment was recovered by default against Brown; the other defendants contending that the credit was exclusively given to him, while he had the control of the vessel; that the supplies were not necessary, and were furnished not only without their concurrence, but in direct opposition to their wishes, and while Brown was acting in open hostility to Lowry & Jarvis, in relation to the management of the vessel.

The plaintiffs offered in evidence parol evidence of the contents of a bill of the articles furnished, which had been rendered about the time of their delivery to Brown; having proved the usual preliminary notice to entitle them to the benefit of secondary evidence. This was objected to by the counsel of Lowry & Jarvis, on the ground “ that a state of facts should have been first established warranting the legal inference thatthe possession of one was the possession of all; showing that they were joint owners of the same vessel was not enough.” But if the joint owners are jointly liable, and if the proof was introduced for the purpose of showing that the credit was given to the ship, it was sufficient to show the delivery of the bill to any one of the defendants, and its possession by him. It surely was not requisite to deliver it to all; and the mere circumstance that Brown was at variance with the other defendants, although it affected the relations between themselves, should not operate to the prejudice of the plaintiffs, unless it was shown that they acted in collusion with him, or that they gave him credit exclusively, expressly discharging the others. But this evidence was offered for the express purpose of proving the contrary to this, that the credit was given to the vessel, and not individually to Brown. It may, indeed, be the interest of the latter to withhold the bill, and endeavor to throw the payment of a portion of this demand on Lowry &■ Jarvis; but this is their misfortune, a mishap to which all persons engaging in business with others are often liable, but with which third parties have nothing to do. The plaintiffs proved that the supplies were delivered on board the Pacific, that they rendered a bill to Brown, that it was last seen in his possession, and that it had been inspected by the other defendants. Having proved that the usual notice was served on Brown to produce the bill, and Brown failing to produce it, I think it was proper to allow the plaintiffs to give parol evidence of its contents. The same remark will apply to the evidence relative to the duplicate receipts.

' The referee having found the facts, that the defendants were joint owners, that the supplies were, necessaries furnished to the Pacific, and that the credit was not given exclusively to Brown, in discharge of the others, the only questions remaining for us to consider are,

1. Can the acts and declarations of one joint owner, in relation to supplies furnished bind the otheps, unless expressly authorized or sanctioned by them ?

2. Did the referee err' in not allowing Lowry &. Jarvis to show that during the months of February and March, 1851, Brown acted in hostility to them, in relation to the vessel and their interests in it ?

3. Did he err in excluding the testimony of the defendant Jarvis?

In relation to the first question, it is well settled that joint owners of a vessel are primarily liable, at all events for supplies furnished in the port to which she belongs, whether the owners are in such place or not; that frima facie their liability is identical with that of persons in the relation of copartners, as joint contractors; but if any one of the owners arrogates the control, to the exclusion and against the wishes of the others, and not merely as husband of the vessel, and this assumption is known to the persons furnishing the supplies, thus showing that they act in collusion with the usurping owner, then I should say the others are not liable.

In this case, there is no proof of any exclusive control on the part of Brown, or any such collusiveness on the part of the plaintiffs. The mere acceptance on their part of a note is no proof, in itself, that the credit was given exclusively to Brown, or that it releases the other defendants, in the absence of proof that the note was taken as payment, and with the intent to discharge the other owners. Schermerhorn v. Loines, (7 John. 311;) Muldon v. Whitlock, (1 Cowen, 290,) and Higgins v. Packard, (2 Hall, 547,) are conclusive on this point, and have never been questioned.

2. Did the referee err in not allowing Lowry & Jarvis to show that during the months of February and March, 1851, Brown acted in hostility to them, in relation to the vessel and their interests in it ?

The mere hostility of Brown to the others, in relation to the vessel and their interest in it, could not be relevant, unless they also showed that he usurped exclusive control over the vessel, and undertook a voyage with her in direct opposition to them, and that the plaintiffs were aware of this, and acted collusively with him. Nothing of this kind was attempted. On the contrary, the very witness by whom they offered to show the hostility of Brown, testified that Lowry & Jarvis ordered other ship stores, from other parties, for that voyage, showing that this voyage was with their knowledge and consent. If indeed they. offered to show that Brown not only acted in hostility towards them, but took exclusive possession and control of the vessel, undertaking a voyage in express contravention of the wishes of the other owners, and that the plaintiffs knew this, such testimony, in my opinion, would have been admissible.

[New York General Term, September 3, 1855.

3. Did the referee err in not allowing the defendant Jarvis to be examined as a witness for the defendant Lowry ?

The offer was made without qualification, except that the testimony of Jarvis should not be used for himself. This is not enough; he could only be examined as to any matter in which he was not jointly interested or liable with the other defendant. He could have shown,, for instance that Lowry was not a joint owner at all, and if the offer was limited to this, Jarvis ought to have been examined; but not if the object was to negative the liability of the owners of the vessel, "whoever they were, or to reduce the amount of the claim ; or to show that the credit was given exclusively to Brown; for in all such questions he was jointly interested with Lowry, and in relation to them a separate judgment could not be rendered. Where a defendant has no separate defense in an action on a joint contract, a co-defendant called as a witness could prove nothing that would not enure to his own benefit, as well as to the benefit óf his co-defendant; and as to such matters he is, therefore, interested, and of course incompetent. (Beal v. Finch, 1 Kernan, 132, Judge Parker’s opinion.) Jarvis & Lowry, if liable at all, are liable as joint contractors with Brown.

On the whole I see nothing to warrant us in disturbing the finding of the referee.

Judgment affirmed, with costs.

Mitchell, Clerke and Cowles, Justices.]