Taylor v. Richards , 69 Mass. 326 ( 1855 )

Thomas, J.

There are, at the least, two objections to the maintenance of this action, either of which is quite conclusive. 1st, there is no privity of contract between the plaintiff and the defendant. Call and Metcalf had authority to use the vessel, and the contract of defendant was with them. If they received profits from the use, they, if any one, are the parties to be sued. 2d. The action, if it could be maintained at all, is premature. What course will be pursued by Call and Metcalf, the part-owners with Taylor, cannot be known, until the suits, in which Taylor’s interest was attached, have been concluded. When those suits are disposed of, Call and Metcalf will have their election to return Taylor’s share of the vessel, or pay the appraised value, or pay the judgment recovered against Taylor, holding his share as security for the amount paid.

It cannot now be determined whether the employment of the vessel for the time she is held under the statute by the part-owners will be profitable or not; and if they are to be held liable to account for the use, it would seem plain this could only be for the share of the profits, if any, for the. whole period they so hold her.

We do not, however, mean to intimate an opinion that these part-owners would be so liable. They take the vessel because the other part-owner refuses or is unable to relieve his share from the attachment. They are bound to restore the vessel or pay the appraised value of Taylor’s share. The risk is theirs, and it is very doubtful whether they would be liable to pay any thing in the nature of rents or profits for the use.

Judgment for the defendmt.