McLellan v. Cox , 36 Me. 95 ( 1853 )

Howard, J. —

It is admitted that the defendants were the general owners of the vessel, when the supplies were furnished for which this suit is brought. It appears that they were part owners of distinct fractional portions, respectively ; and there is no evidence that they sustained any relation to each other, excepting that of shipowners, generally. Upon well settled principles, they were tenants in common of the vessel. Abbott on Shipping, 68; Collyer on Part., § § 1185, 1187; 3 Kent’s Com. 39, 40, 151; Story on Part. $ 417, and notes and cases referred to by those authors.

When the master is agent of the owners he may bind them for the necessary supplies and repairs of their vessel, but not so where no agency, express or implied, exists. There was evidence in this case tending to show that Hoyt, the master, hired the defendants’ vessel “ on shares that he had the possession, and sole control and management of her, and sailed, victualed and manned her, on his own account; and that he was owner fro hac vice. The whole evidence was submitted to a jury, with instructions not appearing to be objectionable, and the verdict, which was for the defendants, we cannot regard as unauthorized. As owner, pro hac vice, the master, having no agency or authority from the general Owners, would be answerable for the necessary supplies procured by himself. 3 Kent’s Com. 137, 138 ; Webb v. Pierce, 5 Law Reporter, (new series,) 9 ; (U. S. Circuit Court, District of Massachusetts,) and the cases there cited, English and American, showing the law on this subject to be well settled in both countries. Lyman v. Redman, 23 Maine, 289.

But the plaintiff insists, that the liability of all the defendants was established, by proof of the admissions of one of them to that effect. There is no proof, however, that they were in partnership, enjoying the rights and powers, or subject to the duties and obligations of partners, in respect to the vessel, her possession, transfer, control and management, or liability for debts or forfeitures. While shipowners may be in partnership as owners, their general relation is that of tenants in common, and their partnership relation, though provable, cannot be presumed from the fact of being part owners. They are not agents for each other, unless made such upon authority conferred for that purpose, expressly or by implication. Their acts are not binding upon each other without such special authority; nor can the unauthorized admissions of one implicate or bind the others. Collyer on Part. § 1229, and notes; Story on Part. 453; Hardy v. Sproule, 31 Maine, 71. Where two were partners, and also part owners of a vessel, the admission of one, as to the subject of part ownership, but not of the co-partnership, Avas held not to be binding on the other, by Lord Ellenborough. 1 Stark. R. 64; Smith’s Mercantile Law, 187; Dan v. Brown, 4 Cow. 483. So the admission of one tenant in common of real or personal property, as such, will not bind his co-tenants.

There was no joint interest shown between the defendants, although a community of interest appeared to exist between them, as part owners of the vessel. The admissions of Cox, one of the defendants, could not, therefore, bind the others. 1 Greenl. Ev. § §. 176, 177.

Exceptions and motion overruled.

Shepley, C. J., and Rice and Hathaway, J. J., concurred.