Trask v. Jones et al.

2. After such evidence of Hunter's authority to contract had been given, evidence of a contract between him and a shipper of goods in such vessel for the particular voyage, fixing the rate of freight to be paid, was admissible.

3. An order drawn by one who has furnished supplies to a vessel indorsed upon one of her bills of lading and drawn upon the master requesting him to pay a sum named, describing it as the freight on the bill of lading, of which the within is a copy, and accepted by the master with the knowledge and assent of the owners of the vessel, is a sufficient equitable assignment of the freight of the goods in such bill of lading mentioned, and entitles the assignees to recover that freight from the shippers of the goods.

(Before BOSWORTH, Ch. J., and HOFFMAN and MONCRIEF, J. J.)
Heard, April 14th; decided, June 25th, 1859.

THIS action was tried before Chief Justice DUER and a jury, on the 1st of June, 1857, and now comes before the Court on questions of law arising at the trial, and there ordered to be heard in the first instance at the General Term. It was originally commenced against Walter R. Jones, who shipped goods from New York to California, to recover for carrying the same, and he having died pending the suit, it was, by order made May 7, 1855, continued against Charles H. Jones, Executor, and Sarah Jones and Phebe J. Hewlett, Executrixes, of his last will and testament.

The plaintiff brings the action to recover the amount alleged to be due for carrying materials for a storehouse from New York to San Francisco in 1850, in the ship Clarendon. The complaint alleges that the contract for the carrying of the storehouse is contained in a bill of lading signed by the master, Henry S. Brown, and that a copy thereof is annexed to the complaint, and marked exhibit A. The sum claimed is $1,611.75, "or so much as the carriage of said merchandise as herein set forth is worth." The complaint also states that the owners of the ship being indebted to Merritt & Trask in the sum of $7.044.77 for stores and ship-chandlery furnished to the ship in the port of New York, Brown, the master, as master and by virtue of his lawful authority and as collateral security for the payment of this debt, and before the sailing of the ship, by his written acceptance of an order drawn upon him by Merritt & Trask, "assigned the entire freight on said merchandise, as per bill of lading, to said " Merritt & Trask.

Trask v. Jones et al.

This order of Merritt & Trask was drawn on one of the bills of lading for the merchandise which the master had signed, and is in these words:

"NEW YORK, September 17, 1850. "For value received, please pay sixteen hundred and eleven dollars freight on bill lading, of which the within is a copy to the order of Merritt & Trask.

Before this bill for stores and ship-chandlery furnished by Merritt & Trask was contracted, Raphael Schoyer had agreed with the owners of the vessel to purchase her at $25,000, and pay $8,000 cash in hand and $17,000 on the arrival of the ship at San Francisco. That being paid the voyage was to be his. He paid the $8,000 down, and ordered the stores and ship-chandlery furnished by Merritt & Trask. Brown, the master, was a part owner, and a Mr. Codman was the other part owner. It was proved that Brown accepted the foregoing order in the presence of Codman and Schoyer.

These are the acts which are relied on as amounting to an assignment of the claim for freight to Merritt & Trask. They made an assignment of the claim to the present plaintiff.

By the bill of lading signed by the master, the merchandise was to be carried for 50 cents per cubic foot, with 5 per cent primage and average accustomed.

The defense is, in part, that the goods were not shipped under such a contract as the alleged bill of lading specifies, and that no such bill of lading was ever delivered to or accepted by the shipper of the goods. But on the contrary, that they were put on board upon an agreement between the shipper and R. R. Hunter, the authorized agent of the ship, by which they were to be carried for "one-third of the net proceeds of said articles or merchandise after their arrival at San Francisco and their sale there by" John C. and Henry Hewlitt, the consignees of the cargo.

Trask v. Jones et al.

The Judge, at the trial, held that there was no such contract as the bill of lading signed by the master expressed; and instructed the jury that there was no express contract for the carriage of the goods proved; and that the plaintiff was entitled to recover the customary rates, less the proceeds which had been realized from a sale of the lumber, it having been sold in San Francisco because the consignees refused to receive it and pay freight at the rate of 50 cents per cubic foot. The defendants excepted to each part of this charge. The jury found a verdict for the plaintiff for $1,851.17, subject to the opinion of the Court at General Term on the questions of law arising at the trial.

The evidence of Hunter's authority, as agent, was as follows: The plaintiff's counsel admitted that an advertisement marked schedule "G" was published daily in the New York Journal of Commerce, commencing June 29, 1850, and continuing until September 19, 1850; and in the New York Courier and Enquirer from July 17, 1850, till about the same time, and it was read in evidence. It reads thus, viz.:

"G"

"First vessel for San Francisco, the superior, fast-sailing Canton packet ship

"CLARENDON,

"HENRY S. BROWN, Commander,

"will soon be ready for sea. Shippers who have engaged freight will please send it on board without delay, together with their bills of lading. For balance of freight apply to

"R. R. HUNTER, 80 Broadway,

"J. BELKNAP SMITH, 88 Wall street, "or to the captain or agent on board at Pier 4, North river."

The defendants also produced a written memorandum proved to be in the handwriting of Hunter, which was read in evidence and marked exhibit "J," and is as follows:

"House is about 1,600 cubic feet, at fifty cents per cubic

Trask v. Jones et al.

"Cost of house about $500.

"We will take one-half of the gross proceeds of the house. This leaves the arrangement greatly in favor of the shipper; suppose the house sells for $1,000, in that case the shipper will get the full amount of his cost, and the ship will get but thirty cents per cubic foot.

(Above is a copy of Hunter's estimate.)

"Say the net proceeds.

183

"13th July, 1850. Agreed to of net proceeds to be allowed for freight.

The defendants proved that bills of lading to be signed by the master, for the carriage of the goods, and stating that they were to be carried on the terms alleged in the defendants' answer, were prepared by Walter R. Jones and sent by him long before the ship sailed, to the office of Schoyer & Hunter, to be signed by the master.

The declarations of both Schoyer & Hunter, in their conversations with the agent of Jones as to these bills of lading being signed by the master, were excluded and the defendants excepted.

The defendants offered to prove that Hunter, from time to time, assured Jones and promised him that these bills of lading should be signed by the captain, and that when Jones' agent called, from time to time, to get the bill with the master's signature thereto, Hunter sometimes gave the excuse, for the delay in signing them, that the master was out of town, or some like reason, but promised that they should be executed by the captain, and that "these calls and promises were repeated till after the ship sailed." This evidence was excluded and the defendants excepted.

Various other exceptions were taken which it is unnecessary to state, as they were not passed upon by the Court in disposing of the case.

John E. Burrill, for the plaintiff.

I. There was no evidence to show that Hunter was authorized to make contracts for the ship as owner, or in any way to act for them, but the contrary clearly appears.

Trask v. Jones et al.

II. The property having been shipped by Jones on board the Clarendon, and conveyed to San Francisco, the owners were entitled to recover freight.

If, as the defendants insisted, Jones had not contracted to pay the rate specified in plaintiff's bill of lading, and if, as was clear, the ship owners were not bound by the acts of Hunter, it follows that there was no contract as to the rate of freight, and the shipowners became entitled to recover such sum for the carriage of the goods, as it was reasonably and fairly worth, according to the usual and customary rates of freight, at that time.

III. The pleadings were sufficient to warrant a recovery on a quantum meruit.

IV. The delivery of the bill of lading, and the instrument thereon indorsed to Merritt & Trask, under the agreement proved by Brown, was sufficient to transfer and convey to them the right to demand and recover the freight for the carriage of the merchandise.

1. Brown was the half-owner and the ships-husband, and authorized to finish and procure the necessary supplies for the voyage, and for that purpose to create a lien either upon the vessel or her freight.

2. Merritt & Trask had furnished ship-chandlery and stores to the vessel for the voyage, and had a lien upon the vessel therefor, and the transfer in question was made to them for the purpose of paying the same.

3. The consideration for the transfer was not only good and valuable, but was peculiarly beneficial alike to the owner of vessel and cargo; and Merritt & Trask, having abandoned their lien on the faith of the transfer of the freight, upon every consideration of honesty and justice, are entitled to be protected.

4. It is evident that the intention of Brown & Codman was to assign the freight for the carriage of these goods to Merritt & Trask; and if the instrument does not amount to a formal and technical assignment, the intention of the parties should be carried out, and the instrument sustained as an equitable assignment of such freight.

5. The freight was payable on the delivery of the goods at San Francisco; and the captain, in that character, was the proper person to collect the freight as the agent of the owners.