Hardy v. Sproule , 31 Me. 71 ( 1849 )

Wells, J.

This is an action to recover three eighths of certain alleged expenditures for repair of the schooner Tamerlane, made by the plaintiff as owner of five eighths.

One part owner oí a vessel, merely as such, is not liable to another part owner, for repairs made by him, at the home port, unless they are made with the knowledge and consent of the one sought to be charged. Vessels, in this respect, are viewed in the same light as other chattels owned in common. Benson v. Thompson, 27 Maine, 470.

The jury were in substance instructed, that the defendant would be liable to the claim of the plaintiff, unless he had expressed or manifested his dissent or unwillingness to the making of the repairs, before they were made, or before expenditures were incurred.

But before the plaintiff could recover he should be held to prove a consent, on the part of the defendant, that the repairs and expenditures should be made.

And this rule must apply not only to labor performed by him, but to money paid by him, to purchase materials for making the repairs, and for the labor.

If the plaintiff, without the knowledge and. consent of the defendant, purchased materials for the repairs, upon the credit of both, and subsequently paid for them himself, he would have no better right of action than if he had purchased them on his own credit, or paid for them without credit. He cannot be allowed to do indirectly what he has no right to do directly.

There is not here presented for consideration, such a case as is referred to in Abbott on Ship. 77, where one part owner orders repairs or necessaries for the employment of the ship, on the credit of all, and they are furnished by third persons, without any dissent of a part owner, made known to them, and an action is brought for the price, by such third persons against all the owners.

The plaintiff’s case depends on different principles.

The exceptions are sustained, and a new trial granted.

Note. — Howard, J. took no part in this decision.