Keith v. Murdoch , 2 Wash. C. C. 297 ( 1808 )

WASHINGTON, Circuit Justice

(charging jury). It is admitted that the bill of sale by Haynes to the plaintiffs, though purporting upon its face to be an absolute conveyance, was really intended as a mortgage to secure a debt due. This being understood, the letter written by the plaintiffs, to the defendant. is easy to be understood. The debt due to them from Haynes for which the security was given, amounted to 1,150 dollars, and they were directed to insure to the amount of 2,000 dollars, which would leave a surplus, in case of loss, sufficient to satisfy also the defendant’s advances to the mortgagor. They therefore, with due caution and prudence, promise, that in case of a loss, and the amount coming into their hands, the claim of the defendant should be attended to. But the vessel arrived safe, and of course the amount insured never could come into their hands. The contingency, then, having never happened, upon which a liability in the plaintiffs was to arise, the defendant lost the only planlc upon which his claim could be saved. For surely, as master, Haynes had no power to pledge the freight, in order to raise money for his private purposes. It was contended, that being consigned to no person, he became necessarily the general agent of his owner; but suppose this to be the case (which is not admitted), still he could .not in that character, any more than in that of master, pledge the freight for debts of his own. As agent, he could only act for the benefit of his principal, and all beyond that was without the scope of his authority. It was then contended, that as mortgagor in possession of the pledge, he had a power to charge the freight in this case. It might have been so, if he had held the possession as mortgagor. But he acted as master, and servant of the mortgagee, and appeared in this character in his transactions with the defendant. This is abundantly proved by his and the defendant’s letters to the plaintiffs. This is a fact, however, submitted to the jury, and is the pivot of the cause. If he acted as master, his possession was the possession of the mortgagee, in whom the legal title to the vessel being vested, the legal title to the freight also vested, as an inseparable incident, unless parted with by the plaintiffs. If the plaintiffs have been overpaid tbeir claim against Haynes, they may be compelled in another way to account, and to pay over any surplus to Haynes, or to the defendant But in this action, the plaintiffs must recover.

The jury found for the defendant: believing, from tie evidence, that the captain was intrusted by the plaintiffs with the possession of the pledge, in his character of mortgagor.