Ward v. Bourne , 56 Me. 161 ( 1868 )

Appleton, C. J.

It appears from the. evidence that, the plaintiff was the agent for bark Waverly, and that Thomas Lord was the owner of the three-sixteenths of the same bark.

On May 7, 1857, the plaintiff, as agent for the owners, chartered the Waverly to Rollin Thorne & Co., of Boston, " for a voyage from Boston to port or ports on the west coast of South America, and to Chincha Islands, thence to an Atlantic port of discharge in the United States, a port of discharge in Europe, the West India Islands, or to Mauritius, at the option of the charterers, bark to be consigned to Messrs. Rollin Thorne & Co., of Lima.” The charterers were " to pay the said party of the first part, or his agent, for the charter or freight of said vessel during the voyage aforesaid, in manner following, that is to say : — the sum of sixteen hundred and twenty-five dollars ($1625) per calendar month, and in proportion for any part of a month during the time under this charter, payable at Callao, so far as earned up to time of bark’s discharge on the coast of South America, in bills or drafts on the United States, at sixty days sight, to order of the captain, first deducting the amounts advanced him for his disbursements,” &c., "and parties of the second part are at liberty to recharter the bark for a cargo of guano.”

The vessel arrived at Callao, and, on Feb. 9, 1858, Rollin Thorne & Co., ol Lima, paid the master on account of freight earned, $5210 in cash, and gave their draft on their Boston house, of that date, for $7000, at sixty days sight, payable to the order of Isaac Curtis, master of the Waverly, by whom it was indorsed to the plaintiff as agent.

The Lima house, in pursuance of the liberty given in the charter party, rechartered the vessel for a cargo of guano, while it was at Callao.

On May 18, 1868, the house of Rollin Thorne & Co. having failed, and the draft for $7000 remaining unpaid, they transferred to the plaintiff, as agent for the owners of the bark, their " interest in the freight money on said cargo of guano,” * * "to collect same on account of bark’s earnings” under the charter given them.

On June 10, 1858, Lord sold his interest in the unpaid draft of Rollin Thorne & Co. at fifty per cent, of the amount due, and received therefor the following note of the plaintiff, which he has paid.

"Kenuebunk, June 10, 1868.

"Six months after date, I promise to pay to Thomas Lord the sum of six hundred fifty-six dollars for his T3F interest in Rollin Thorne & Co. acceptance for $7000, given on account of bark Waverly, and remaining unpaid.

Charles Ward.”

The freight on the guano was received and divided among the owners of the bark, Lord receiving his three-sixteenths thereof, and was not enough to pay what was due on the charter party, accruing subsequently to the settlement of freight at Callao.

The plaintiff claims that he is entitled to three-sixteenths of the guano freight money earned by the bark Waverly, after she sailed from Callao, and that the purchase of the draft was the purchase of three-sixteenths of the freight money earned, and to be earned thereafterwards. •

But this claim is untenable. The charter party was entered into in Massachusetts. By its terms, the freight earned at Callao was to be paid by a draft on time. It was so paid. By the law of Massachusetts and of Maine, the giving a negotiable note or draft is to be deemed prima Jade evidence of payment. The draft of Thorne & Co. is to be regarded as payment pro tanto of the freight earned at that date. Nothing is shown to rebut the presumption of law that it was so given in payment. The plaintiff, then, by his purchase, acquired only " three-sixteenths interest in Rollin Thorne & Co. acceptance for $7000,” and nothing more. It was all that was sold and all that was purchased. The risk run is indicated by the price paid.

The guano freight money should equitably go to pay the freight under the charter party which was cotemporaneously accruing. In fact, it was not sufficient for that purpose. But it could never have been the intention of the parties that Lord should surrender the freight which was being earned, for the benefit of the plaintiff who had bought an unpaid draft of the charterers at a discount of fifty per cent. Lord sold no interest of his in the freight then accruing. His transfer was of his interest in a note given for freight already earned. Lord had sold his interest in the past freight, as represented by the draft for $7000, at fifty per cent. He was entitled to his share of the freight accruing after the vessel left Callao. This, he has not sold nor transferred, and this is all he has received, and it does not amount to the sum due on the charter party after leaving Callao.

In Zerrano v. Wilson, 8 Cush., 424, cited by the counsel for the plaintiff, the bill of exchange was brought into Court and filed in a suit between the original parties. In Derickson v. Whitney, 6 Gray, 248, it was held that the payee of a bill of exchange, acceptance and payment of which had been refused, might surrender the bill and maintain an action on the debt for which the bill was given. So, in Alcock v. Hopkins, 6 Cush., 484, the Court held an action» could not be maintained upon the original account, if the bill given for the amount was outstanding. But these cases do not apply, because this is not a suit upon the charter party, nor between the original parties thereto. The draft has never been cancelled nor surrendered, but is still outstanding. Plaintiff nonsuit.

Kent, Walton, Barrows, Daneorth and Tapley, JJ., concürred.