Pike v. Balch , 38 Me. 302 ( 1854 )

Hathaway, J.

The questions presented in this case are upon certain requests made by the counsel for the defendants for specific instructions to the jury, and the instructions thereupon given by the presiding Judge.

“ If the voyage be broken up, in the course of it, by ungovernable circumstances; the master, in that case, may even sell the ship or cargo, provided it be done in good faith, for the good of all concerned, and in case of supreme necessity, which sweeps all ordinary rules before it.” 3 Kent’s Com. 173.

The questions presented by the second request, and the rulings of the Judge thereon, pertain to the duties of the master in such a contingency. The defendants’ counsel complains, that his second request was not entirely complied with, and that the instruction given was too severe in its requirements of the master.

The instruction given was the same as requested, except, that the Judge substituted the words, “ by any available means in the power of the master,” for the words in the request, to wit, “ the earliest use of the ordinary means to convey intelligence.” In case of necessity or calamity, during the voyage, the master becomes the agent of the owners and insurers of the ship and cargo. He' is bound to act in good faith, and for the benefit of all concerned, and is not justified in selling either ship or cargo but in case of extreme necessity. N. E. Ins. Co. v. Brig Sarah Ann, 13 Peters, 387. “ The merchant should be consulted if possible. A sale is the last thing the master should think of, because it can only be justified by that necessity which supersedes all human laws. Abbott on Shipping, 367-8, and notes to 7th Am. ed.

In Hall v. Franklin Ins. Co., 9 Pick. 466, Putnam, J., delivering the opinion of the Court, said, “ the master’s authority to sell must be confined to a case of extreme necessity, which leaves no alternative, which prescribes the law for itself, and puts the party in a positive state of compulsion to act. The master acts for the owners or insurers, because they cannot have an opportunity to act for themselves. If the property could he kept safely until they could be consulted, and have opportunity in a reasonable time to exercise their own judgment in regard to the sale, the necessity to act for them would cease.” The same doctrine was held in Gordon v. M. F. & M. Ins. Co., 2 Pick. 249, and in Peirce v. Ocean Ins. Co., 18 Pick. 83, and in Bryant v. Commonwealth Ins. Co., 13 Pick. 543, in which case the law, as given by Abbott, that “ the merchant should be consulted if possible” was cited by the Court with approbation as authority. The American Ins. Co. v. Center, 4 Wend. 45, was a case of technical total loss of a vessel insured, in which it was said, that the right of a master to sell was more extensive in this country than in England. Chancellor Kent remarking upon that case, in note D, p. 173, of his Commentaries, 5th ed., approved the doctrine of Hall v. Franklin Ins. Co., 9 Pick, as asserting and supporting the stricter doctrine of the English law, which he held to be “best supported by reason and authority.”

In Robinson v. Georges Ins. Co., 17 Maine, 131, Emery, J., delivering the opinion of the Court, said, “notwithstanding our desire to make all just allowances for the difficulty of deciding absolutely right, by masters of vessels, in embarrassing cases occurring in foreign countries, we consider, that the authority of the master, to put in peril the interests of the owner in the ports of the United States, must be narrowly watched.”

The instruction requested, is in the language used by Wayne, J., in his opinion, in case of N. E. Ins. Co. v. Brig Sarah Ann, before cited, and undoubtedly, as a general rule, “ the earliest use of the ordinary means to convey intelligence” in such cases, would be the most available and effectual means in the power of the master, but all general rules are subject to exceptions, and where the calamity occurs in a place so situated and limited in its ordinary means of transmitting intelligence by mail, that a resort thereto would be obviously fruitless and nugatory, it is not going beyond the requirements of well established law to hold the master bound to avail himself of such other means as may be in his power, and by which notice might be speedily communicated to the owners.

The subject of the third request was entirely matter of fact to be considered and determined by the jury, and the request was properly refused.

The seventh, eighth and ninth requests were concerning the duties of the auctioneer, and the effect of his proceedings. Auction sales are within the statute of frauds. Davis v. Rowell & al., 2 Pick. 64. “No contract for the sale of any goods, wares or merchandise, for the price of thirty dollars or more, shall be allowed to be good, unless the purchaser shall accept part of the goods so sold and actually receive the same, or give something, in earnest to bind the bargain, or in part payment, or some note or memorandum in writing of the said bargain be made and signed by the party to be charged by such contract, or by his agent thereunto by him lawfully authorized.” Statute, c. 186, § 4 The auctioneer is the agent of both parties, and is bound to act for them both, with equal fidelity; and his entry of the name of the purchaser on his book or memorandum containing the particulars of the contract, is a sufficient signing within the statute. Until some one of those things required by the statute, as necessary to complete the contract -of sale, be done, a time for repentance remains, and the sale is not perfected. Kenworthy v. Schofield, 2 Barn. & Cres. 945; 2 Johns. Chan. Rep. 659; Cleaves v. Foss, 4 Greenl. 1; Alna v. Plummer, 4 Greenl. 258. Neither of those things necessary to complete the contract of sale having been done, the business remained unfinished and open for further proceedings.

The instructions given upon the eighth request were quite favorable enough for the defendants, and were unexceptionable.

The seventh and ninth requested instructions were erroneously given, and might have furnished good cause for exceptions to the plaintiff if the verdict had been against him. The property did not become vested in the bidder by being fairly knocked off to him. There was something more to be done before his rights of property became vested. There can be no doubt of the propriety of the qualification to the seventh request; and the qualification of the ninth was correctly given according to the doctrine of Goodwin v. Morse, 25 Maine, 140, which is sound law; the question was properly left to the jury.

By the tenth request the defendants seem to make a contingent claim as salvors. “ Salvage is the compensation that is to be made to other persons, by whose assistance a ship or its lading may be saved from impending peril, or recov~ ered after actual loss.” Abbott on Shipping, 554.

This case presents the defendants as claiming to be the absolute owners of the property, not as claiming a lien upon it for salvage. They saved it for themselves, not for the plaintiff. If this were a proceeding by the plaintiff in a Court of admiralty jurisdiction, to obtain possession of the property saved, and the Court believed, that although the sale was invalid by fault of the master, yet, that on the defendants’ part, the purchase was bona- fide, there might, perhaps, be a decree for possession on condition of paying the defendants their disbursements and expenses in saving the cargo according to the rules by which Courts of Admiralty are governed in such cases, as stated by Story, J., at the close of his opinion in case of the brig Sarah Ann, 2 Sumner, 206; unless the conduct of the defendants in the matter, had been such as to deprive them of the benefit of such equitable consideration.

It appears by the testimony of Wilson, that when the plaintiff’s title and claim to the property were made known to the defendants, and the plaintiff offered to pay their disbursements, and the expenses of getting the lumber on shore, and sought information of the amount, the plaintiff’s title was not recognized bv the defendants, his offer was not accepted, the information sought was not given, •and the defendants claimed the lumber as their own property.

The defendants virtually tendered an issue upon the mere title, and the plaintiff had his right of action at law. Abbott, 556, with notes to 7th Am. ed; Clark v. Chamberlain, 2 Mee. & W. 78.

In the language of the tenth request, “If the sale was invalid by reason of the master’s not consulting the owner and taking his direction before the sale, and the absolute title of the defendants thereby failsthen the necessity for the sale did not exist. Hall v. Franklin Ins. Co. before cited. And if the master sold without necessity, he sold without authority, and the persons who bought under such circumstances would not acquire a title as against the merchant, but must answer to him for the value of the goods. Abbott, 368, and notes to 5th Am. ed.

Upon the facts presented in this case, if the defendants have any equitable claim for compensation, for services and disbursements in saving the cargo, their remedy is to be sought in a court of admiralty jurisdiction.

In the rulings of the Judge who presided at the trial, no error is perceived, by which the defendants were aggrieved, and as agreed by the parties, there must be judgment on the verdict. Exceptions overruled.

Judgment on the verdict.

Shepley, C. J., and Tenney and Howard, J. J., concurred.