Coursin's Appeal

Mr. Justice Sharswood

delivered the opinion of the court, October 11th 1875.

It will not be necessary to consider whether the supplemental bill filed without leave of the court ought to have been allowed to stand, as we are of opinion that upon the proofs in the cause, the plaintiff, James Gordon, showed no equity to sustain the decree made below in his favor. The supplemental bill wras against the owners of the James Rees, for an account of the profits of that boat, on the ground, either that the plaintiff was a part owner, or that the defendants were trustees for him. In either aspect the bill was defective on the score of the parties. One of the original defendants was John E. Shaffer, who, although a member of the company which owned and ran the Col. Bayard, was not a member of the company which owned and ran the James Rees. He received his share of the proceeds of the Col. Bayard. Whether that be considered as its purchase, or what he agreed to be its value, and he distinctly refused to be interested in the new boat, yet he is decreed along with the other defendants to pay the plaintiff the share of his alleged interest in the profits and proceeds of the James Rees, of which, as far as appears, he never claimed or received a dollar. Four- gentlemen are clearly shown to have subscribed to and become interested in the James Rees, who were not interested in the Col. Bayard, who are not parties to this proceeding, and have not been heard; yet if James Gordon was either a part owner or a cestui que trust of the owners of the James Rees, they must contribute their just proportion of the decree. We may pass these objections as, if the justice of the case require it, the cause might be remitted to the court below to have the proceedings amended in these respects.

Let us come to the consideration of the merits of this cause. Was James Gordon to any extent a part owner of the James Rees, entitled to an account of her earnings and proceeds, and to recover any share of them? We may agree with the learned master that the auction sale of the Colonel Bayard of December 23d 1862 to Coursin did not divest the title of James Gordon. The Colonel Bayard, after, as before, remained the property of the original owners. Those of them who acquiesced in that sale, and accepted their share of the price, thereby transferred their interest to Coursin. This they all did except Gordon. He had a right then to object to the dismantling of the old boat, insist upon a fair sale, under the order of a court of equity, and would have been entitled to a decree for an account of the earnings and proceeds, and to recover his share.. This was the frame and purport of his original bill, under which, upon the evidence, he is entitled to a decree for an account. But upon what principle of law or equity can it be maintained that because Coursin, the alleged purchaser of the Colonel Bayard and the actual purchaser of all the shares except Gordon’s, by wrongfully taking a part of the machinery of the Colonel Bayard, and using it in the construction of the James Rees, Gordon to the extent of his interest thereby became a part owner in the latter ? If a man wrongfully take my lumber, and uses it with his own in the building of his house, does that make me a tenant in common with him ? If I could earmark and identify the property, I could follow and seize it, or recover damages in an action of trespass or trover. “ If the materials of a person,” says Chancellor Kent, “ are united to the materials belonging to another, by the labor of the latter, who furnishes the principal materials, the property in the just produce is in the latter, by the right of accession.” This rule of the Roman and English law was acknowledged in Merritt v. Johnson, 7 Johns. 473; and it has been applied by Molloy to the case of building a vessel. According to the doctrine in the Pandects, if one repairs his vessel with another’s materials, the property of the vessel remains in him; but if he builds the vessel from the very keel with the materials of another, the vessel belongs to the owner of the materials — the property is supposed to follow the keel — “ proprietas totius navis carince causarn sequitur2 Kent Com. 361-2.

Nor do we think that the contention that the defendants were bound to account to the plaintiff, as trustees, for his share of the Colonel Bayard, can avail to sustain the decree below. Undoubtedly, where there is a confidential relation existing, as that of principal and agent, .the principal may compel the agent to account for the profits he has made with his property. Partners are general agents for each other. If one member of a firm, therefore, take the common property and trade with it on his own account, he must answer to his co-partners for all the profits he may make. But part owners of a boat are not partners, but tenants in common. If one tenant in common of a chattel sells it, it is an ouster and conversion, and his co-tenant may follow the chattel in the hands of the purchaser, or may hold the wrongdoer responsible in damages, to the full extent of the value of his interest in the chattel of which he has been deprived. But no one has ever supposed, that I am aware, nor has any authority been cited to show that the proceeds can be followed into any trade or business in which he may invest them, and he be held to account for all his earnings and profits. If there had been such an authority the learned and painstaking master would not have failed to discover it. He has himself cited an authority to show that the owners of the Colonel Bayard were not co-partners as to her ownership, but part owners. The interest of each, therefore, could only be sold by himself or his duly authorized agent: 1 Parsons’ Maritime Law 84.

We thinlc, therefore, that the supplemental bill ought to have been dismissed. But inasmuch as we are of the opinion that upon the original bill the plaintiff was entitled to a decree of account as to the Colonel Bayard, and inasmuch as it may be that there may be other accounts, outstanding credits, as well as claims against that boat, we remit the record to the court below, that such decree may be there made and proceeded with according to the course of equity.

The appeal of James Gordon is dismissed with costs. The decree below is reversed, and the record remitted to the court below for further proceedings: the costs of the appeal of Coursin and others, defendants below, to be paid by the appellee.