Tuells v. Torras

Application for a Rehearing.

After the judgment in this case was rendered and before the remittitur was transmitted to the court below, the defendant in error filed a motion for a rehearing. After a careful examination of the grounds of the motion and of the record in the light thereof, we have reached the conclusion that the judgment as rendered was ¡correct, and therefore that the motion for a rehearing must be de*697nied. A brief reference to the several grounds of the application will be made, and our reasons for overruling the same will be stated. It is contended that the judgment rendered is based upon the assumption that the uncontradicted evidence showed that Tuells was master of the vessel at the time he filed the petition, while in fact there was a conflict on this point. We do not think that the judge could have held otherwise, under the evidence, than that Tuells was, at the time he filed the petition, authorized to act as master of the vessel, and as such to assert any right which he might have as master in behalf of himself, the owner, or others interested in the vessel and her cargo. It is conceded that the uncontradicted evidence- showed that Tuells was the duly appointed master of the vessel. It is claimed, however, that there was testimony from which the judge could have found that his connection with the vessel had ceased. We can find no evidence whatever showing that Gonzalez had ever expressly discharged Tuells from his position as master, nor is there any evidence that Torras as the authorized agent of Gonzalez had expressly discharged Tuells. It is true that Torras in his answer, which was used as an affidavit, says that “the entire crew as well as the master were discharged from any and all connection with said vessel long prior to the filing of his said petition;” and in an affidavit says that “prior to said sale he was the authorized agent of Gonzalez in and about the said vessel, that the crew and the master were discharged and ceased to perform any of their duties, and had no longer any connection with said vessel and its cargo,” and that after the sale he entered into quiet, peaceable, and exclusive possession of the vessel, and was in possession at the time of the filing of the plaintiff’s petition and the levy of the attachment in his favor. We think the statement in the answer and affidavit of Torras, that Tuells was discharged as master, is merely a conclusion of the affiant, and a conclusion which is not authorized by the evidence in the case. There is no evidence whatever, as "has been stated, that Tuells was ever expressly dismissed from his position as master either by Gonzalez or Torras as his authorized agent. If he had been so dismissed by either, the fact would no -doubt have been established by direct evidence, and the matter would not have been left, to say the most of it, in its present equivocal shape. Taking the evidence in the case as an entirety, no other conclusion could properly be reached than that Tuells was *698still master of tbe vessel, notwithstanding his possession had been interfered with and his right to assert his authority as master denied by Torras and others, who certainly were not at all times acting in the interest of the owner of the vessel.

A rehearing is asked upon the further ground that the court did not pass upon the question as to whether Tuells as the representative of Gonzalez was estopped from raising any question as to-the validity of the entry of levy which was held to be void. In reference to this ground of the motion it is sufficient to say that nowhere in the pleadings in the case was an estoppel set up, nor was this question presented to the court when the case was argued here, although we could not have considered it if it had been presented, for the reason that the question is not raised in the pleadings^

In reference to those grounds of the motion for a rehearing which ask a reconsideration of those questions which were expressly passed upon when the judgment was rendered, we can only say that we are satisfied with the conclusions reached, and see no reason for changing them in any way.

Motion for rehearing denied.

All the Justices concurring.