Noyes v. Staples , 61 Me. 422 ( 1870 )

Dickerson, J.

Assumpsit against the defendants, as owners of the schooner Golden Rule, for a stove sold and delivered to her master, for her use, and on their credit. The presiding judge ordered a nonsuit on the ground that the vessel was let to the master on shares.

The agreement between the master and owners was that the owners should man and provision her while she was mackereling,. and the master should have three per cent of her net stock, but while she was coasting the master should man and provision her and have three-fifths of what the vessel stocked. There was no provision in the agreement that the master should have the control of the vessel pending this arrangement, or that he should decide when she should be engaged in the mackereling'and when in the coasting business.

In order to make the master of a vessel owner pro Jiao vine, under a contract for sailing her on shares, ho must have the exclusive control of her for the time being. This principle runs through all the recent authorities. Thompson v. Snow, 4 Maine, 269; Winsor v. Cutts, 7 Maine, 261; Lyman v. Redman, 23 Maine, 289; Bonzey v. Hodgkins, 55 Maine, 98.

The other point made by the counsel for the defendants, that the credit was given to the master, is not sustained by tlie ev dence. One of the plaintiffs testified that the stove was furnished on the credit of the owners, and that it would not have been furnished on the master’s credit. There is no evidence in the case to control this testimony. The taking of the master’s due bill was at his solicitation, and for his accommodation, without any purpose to change the credit originally given. Paine v. Dwinel, 53 Maine, 52. Exceptions sustained.

Cutting, Walton, DaNEouth, and Tapley, JJ., concurred.