Loftus v. Clark , 1 Hilt. 310 ( 1857 )

Daly, J. —

The instrument upon which the plaintiff sought to recover was not a promissory note. The undertaking in a promissory note oi bill of exchange must be, to pay absolutely and at all events, and must not depend upon a contingency. Carlos v. Fancourt, 5 T. R. 482 ; Kingston v. Long, Bayley, 13. It was a .special agreement to pay Scotsmer $40, being the amount of his advance wages in the ship called the Arabia, provided he proceeded to sea in that vessel according to the shipping articles. In promissory notes and bills of exchange, a consideration is presumed and need not be proved, but bere tbe consideration is expressed upon tbe face of tbe instrument, and, to establish tbe defendants’ liability, it was necessary to show that Scotsmer went to sea in tbe vessel. Tbougb made payable to Scots-mens order, it was not necessary as in tbe case of a promissory note, or other negotiable instrument made payable to order, that be should indorse it. Tbe delivery of it, by Scotsmer, to tbe plaintiff, with tbe intent to vest in the plaintiff all tbe interest Scotsmer bad in it, to transfer to tbe plaintiff whatever claim or demand Scotsmer bad, or might have upon it, against tbe defendants, was sufficient to pass tbe legal title to it, and vest it in' tbe plaintiff. Hastings v. McKinley, 1 E. D. Smith, 271. It was shown that tbe plaintiff kept a boarding-house; that Scotsmer boarded with him, and that be gave it to the plaintiff for board, and for an amount which tbe plaintiff bad advanced to him. This was .sufficient to show a good and valid transfer of it to tbe plaintiff.

This was not an action for seamen’s wages, but upon a written instrument by which tbe defendants promised to pay William Scotsmer a certain sum of money, if be would do a certain act. It was a promise founded upon a good and valid consideration. Tbe liability of tbe defendants does not grow out of services rendered to them by Scotsmer, as a mariner, but because they agreed to pay him $40, bis advance wages, if be would proceed to sea in a certain vessel; or if it could be regarded as an action for seamen’s wages, it was not shown that tbe defendants were tbe owners of tbe vessel, and tbe act of 1819 deprives tbe justice of jurisdiction of actions for seamen’s wages, only where the action is against the owner, master or commander of any ship or vessel, upon a contract made with tbe owner, commander or master. Davies’ Laws relating to tbe city of New York, p. 501.

No question is raised by tbe appeal as to the authority of tbe defendants’ clerk to make such a contract on behalf of tbe defendants, or any question as to whether Scotsmer proceeded in tbe vessel according to the,terms of tbe contract. The justice found upon both these points in -favor of tbe plaintiff: and no objection is taken as to tbe sufficiency of tbe evidence to warrant bis so finding, except that tbe judgment should have been for tbe defendants, wbicb is not a sufficiently specific statement of a ground of appeal. *