Mustard v. Robinson , 52 Me. 54 ( 1862 )

The opinion of the Court was drawn by

Appleton, J.

The bill alleges that the plaintiffs and the defendant were part owners of the ship Daniel Elliot, from Jan. 1, 1855, to Jan. 1, 1861, in certain proportions as therein set forth; that, during a part of this time, the defendant was agent for the owners and master of the vessel; that he continued as such master till the ship was condemned and sold; that he received her earnings and the proceeds of her sale and should account for the same. It then alleges that the defendant, though requested, has never accounted with the plaintiffs for the funds, belonging to and arising from the vessel, now remaining in his hands.

The answer admits the existence of the relation of joint owners of the ship in question — the receipt of its earnings by the defendant, as agent of the owners, and of the proceeds of the vessel, as master, and alleges an entire adjustment of all its accounts.

The preponderance of proof satisfactorily shows that the plaintiffs called on the defendant to produce his vouchers and to make a final adjustment of the accounts of the ship ; that a time and place were agreed upon for that purpose ; and that the defendant neglected to appear and make the requested settlement.

It is urged that, as part of,the funds were received by the defendant as master of the vessel, and a part as agent for the owners, that therefore the bill is not maintainable.

By R. S., 1857, c. 77, § 8, jurisdiction in equity is conferred on this Court " in cases of partnership and between part owners of vessels and other real and personal property, for adjustment of their interests in the property and accounts respecting it.” ' '

The plaintiffs and defendant are part owners of a vessel. The evidence shows .that a part of the funds were received in that capacity, and a part by him as agent and as master. But, though master and agent, he was none the less part owner. Being part owner, and the funds arising from the vessel being in his hands, tlie other part owners have, by the clear and unequivocal language of the statute, a right to the adjustment of their interests in the vessel and of the accounts respecting it.

The bill is therefore maintained, and a master must be appointed before whom the accounts of the parties must be presented for adjustment.

Tennev, C. J., Rice, Davis, Goodenow and Walton, JJ., Concurred.