Pickering v. Holt , 6 Me. 160 ( 1829 )

ASeelen C. J.

delivered the opinion of the Court.

The only question in this case is whether a master of a vessel, in virtue of his character and authority as such merely, can bind his owners by executing a charter-party under his hand and seal, in such a manner as to subject them to an action of covenant broken upon the charter-party, issue being joined on the plea of non est factum. The law on this subject appears to be settled. In Abbot on Shipping, 164, it is laid down in these words j — “ The execution of a charter-party by the master, although said to be done on behalf of the owners, does not furnish a direct action, grounded upon the instruments against them. This depends upon a technical rule of the law of England, applicable as well to this as to other cases, and not affected by mercantile practice of executing deeds for and in the name of absent persons; the rule being, that the force and effect which that law gives to a deed under seal, cannot exist, unless the deed be executed by the party himself, or by another for him in his presence, and with his direction; or, in his absence, by an agent authorized so to do by another deed ; and in every such case, the deed must be made and executed in the name of the principal.” See also, Harrison v. Jackson & al. 7 D. & E. 207, and Horseley v. Rush & al. there cited. The above principle, so far as it relates to the mode of executing a deed by an authorized agent, is done away by our statute of 1823, ch. 220. In the case at bar it is not pretended that the charter-party was executed in the presence and by the direction of the owners, or that they had by any deed under their hands and seals authorized Norton, the captain, to execute it on their behalf. It has been contended that the facts stated in the oral testimony, and those appearing on the face of the documents from the custom house, furnish evidence of a ratification on the part of the owners, of the act of- the captain in siguing the charter-party. We cannot admit this argument to possess any force. A parol ratification cannot be more availing than a parol authority previously given ; and that would have been clearly insufficient. We see no grounds for setting aside the nonsuit. There must be

Judgment for the defendant for costs.