author: Moncrief, J.

text:
    David Ogden, Plaintiff, v. The New York Mutual Insurance Company, Defendants.
    1. Where a policy of insurance is “ on all passage money received, * * for passengers on board ” a ship named, for a specified voyage, * * “ all risks to attach as soon as said passengers are engaged and paid for,” and where, by the. statute law of the country where the policy is issued and the passengers are shipped for the voyage, the person receiving the price of the passage from the passengers, contracts to land such passengers at the port of destination, free of any charge beyond the passage money so received, and where, after the vessel sails on such voyage, with passengers who have paid their entire passage money in advance, she is lost with all the passengers; the assured is entitled to recover the amount of the passage money contracted to be paid, and so advanced by the said passengers.
    2. The fact that such statute was not in force when the policy was issued, but was passed subsequently, but prior to a renewal thereof and the transaction in question, does not affect the interpretation and legal effect of the policy as thus renewed.
    3. In such a case the passage money, though paid in advance, can be recovered back.
    4. The fact that all the passengers are lost, and the possibility that the ship owner may not be called upon to refund the passage money, does not affect the question of his liability to the passengers and their representatives, nor that of the liability of the insurers.
    (Before Bosworth, Oh. J., and Monorief and White, J. J.)
    Heard, May 14,1861;
    decided, June 1, 1861.

      Exceptions taken by defendants at the trial, and there ordered to be first heard at General Term. The action is on a policy of insurance issued by the defendants to the plaintiff.
    1. The plaintiff, being part owner and ship’s husband of the ship Driver, obtained a policy, dated January 13th,. 1855, which was renewed from time to time, and on the 22d October, 1855, was renewed for $25,000, and again April 25th, 1856, for $25,000, and the risk for the voyage in question was indorsed on the policy.
    The policy was the ordinary form of a policy on cargo, but contained the following expressions material to this suit. It was issued to “David Ogden, on account of whom it may concern.” The insurance was, “ at and from Liverpool to NewYorlc, on all passage money received hy A. Taylor & Co., or hy their agents in Liverpool, for passengers on hoard the ships Driver, and others, all rislcs to attach as soon as the passengers are engaged and paid for.”

    The printed clause of the cargo policy was retained. “ Upon all lawful goods,” &c. “ Beginning the adventure from, &c., the loading, and so shall continue, &c., until the said goods shall be safely landed.”
    2. The ship sailed on the voyage from Liverpool, February 12, 1856, bound for ETew York, with 344 passengers on board, all bound to Eew York. The passage money for these passengers was paid to A. Taylor & Co., before the Driver sailed, and amounted to $6,395.
    This amount and risk was duly indorsed on the policy by the Company.
    The ship was never heard from, and probably foundered at sea.
    3. After the ship had got out of time, and it was concluded she Avas lost, the plaintiff called on the defendants for the loss; and the only objection made by the defendants was, that as the passage money had been received, the insured had sustained no loss. ETo objection was made for want of preliminary proof of loss and interest.

      The vessel also was insured by the defendants, and they paid the loss on the vessel insurance in September and October, 1857.
    4. The defendants, on cross-examination of the plaintiff’s witnesses, proved that the passage money received went to pay the provisioning and disbursements of the ship.
    5. The allegations in the complaint as to the passage money, are, that the ship sailed, &c., having on board 344 passengers, the passage of which had been paid to A. Taylor & Co., and their agents in Liverpool, and amounted to $6,395. And an averment that the ship sunk, &c., and was, with all of said passengers and all on board, wholly lost, and she never completed her said voyage, and never earned the said passage money or any part of it.
    On the trial, had before Mr. Justice Woodruet and a Jury in December, 1860, the plaintiff, against the objection and exception of the defendants, read in evidence the English Passenger Act of August 14th, 1855. Section LXXI of that act, provides that every person (with an exception not applicable to this case) “ who shall receive from any person, for or in respect of a passage in any ship, * * shall give to the person paying such money,
    a contract ticket, signed by the owner, charterer or master of the ship,” * * in the form contained in Schedule K. for cabin passengers; and in the case of all other passengers, in the form contained in Schedule L., and that “ any directions contained on the face of such form of contract ticket shall be obeyed in the same manner as is herein set forth.”

      Each form of contract ticket contains the following (inter alia) viz.:
    In consideration of the sum of £ I hereby agree with the person named in the margin' hereof, that such person shall be provided with class cabin passage in the above named ship, to sail from the port of for the port of in with not less than cubical feet of luggage for each ^person, and that such person shall be victualed as class cabin passenger during the voyage, and the time of detention at any place before its termination; and I further engage to land the person aforesaid, with luggage, at the last-mentioned port, free of any charge beyond the passage money aforesaid; and I hereby acknowledge to have received the sum of £ - 5 full ? payment of such pasln ( part <¡ sage money. Signature in full, Place and date, [If signed by a broker or agent, state on whose behalf.] . No. of Persons. Names. Adults above 12 years. Children 12 years and under. Total No. of persons, 1
    The defendants moved to dismiss the complaint on various grounds (covered by their points, following): the motion was denied and they excepted.
    The Judge ordered a verdict for the amount claimed by the plaintiff, with interest, being $8,119.69. The defendants excepted.
    The Judge thereupon ordered the exceptions arising on the trial, to be first heard at General Term, and judgment, in the meantime, suspended.
    This case, and the proceedings on a former trial of it, are reported in 4 Bosw., 447.

      T. H. Lane and Wm. Curtis Noyes, for defendants.
    I. The purpose of the policy is clearly indicated by taking all its parts together as modified by the written portions.
    It is obviously meant to insure against any loss of passage money if the ship should be detained, or he obliged to return to port, or to seek a port of refuge, or some other contingency should occur by which the passengers should become a charge and expense to the ship, which charge and loss was to he made good by the underwriters.
    It is well settled that the intention of the parties is to be deduced from the whole instrument, and if there is any inconsistency in a policy of insurance, the written part will control the printed words. (Jefferson Ins. Co. v. Cotheal, 7 Wend., 73-80 ; Howland v. Com. Ins. Co., Anth, N. P., 2d ed., 42.)
    II. The plaintiff admits that he has sustained no loss, but, on the contrary, was paid the passage money before the vessel sailed. According to his construction of the policy, it would be a wager, as regards the passage money, he having no insurable interest. There could be no risk on passage money actually received. (1 R. S., p. 652, §§ 8, 9, 10 ; 2 R. S., 4th ed., p. 72.)
    III. The plaintiff is not liable to return any portion of this passage money. The payment by the passengers was absolute, and the condition of their being taken on board; they could not, after the voyage had been commenced, have recovered any portion of it. (1 Arn. on Ins., 220, 261, and cases there cited ; Abb. on Shipping, 408, 410 ; Andrew v. Moorhouse, 5 Taunt., 435 ; Gillan v. Simpkin, 4 Camp., 241 ; De Silvale v. Kendall, 4 Maule & Selwyn’s R., 37 ; Winter v. Haldimand, 2 Barn. & Adolph., 653 ; 2 Show., 283 ; 3 Kent, 225, 226 ; 4 Pick., 434.)
    1. The safe arrival of the passengers was not a condition precedent to the payment; the consideration was in receiving the passengers on board, and making due efforts to deliver them. The ship could not be compelled to refund the passage money. (Watson v. Duykinck, 3 Johns., 335.)
    2. This is the universal mercantile usage. The ship is obliged to furnish stores, provisions, &e., for the passengers, and therefore exacts payment in advance as a condition of receiving them, and is not bound to refund the money; and, in absence of proof of any other contract, this usage must govern.
    3. If it was a condition precedent, it was waived by the prepayment, and cannot be recovered back without some fault on the part of the shipowner, by which the voyage was not completed.

      4. The prepayment being a waiver of the condition, no agreement to pay the passage money back can be implied within any of the cases cited, or upon principle. (Fland. on Shipping, § 447 ; McGloin v. Henderson, 6 Louis. R., 715 ; Gibson v. Bradford, 4 Ellis & Black, 584 ; 30 L. and E., 134.)
    IY. But if this were not so, and the passengers could have recovered the passage money paid, they, the passengers, are all lost, and it does not follow, neither is it averred or proved that they left any personal representar tives, or that these would have any interest such as to recover back any portion of the passage money.
    Y. Even if the legal' liability to refund (if any claim against the plaintiff should ever be made) were clear, it would not support this action. The insurance is for indemnity against the actual loss or damage, not against the possible contingency of claim and recovery.
    YI. But there was no liability to refund. The complete performance of the contract to carry to Hew York, if one was.made, was rendered impossible by the act of God, so that the passengers could not tender themselves to be carried, nor could they be carried. When a ship is lost by a peril of the sea only, the owner is entitled to a reasonarble time to procure another ship to carry the passenger forward, the same as in regard to freight, and the passenger must tender himself for that purpose. This could not be done, and no recovery under any contract under the passenger acts, or implied from the agreement to carry, could be had against the shipper until such tender.
    1. As to contracts, the performance of which is rendered impossible by the hand of God, see Story on Con., § 975 ; Beebe v. Johnson, 19 Wend., 502, per Nelson, Ch. J. ; Moakley v. Riggs, 19 J. R., 69 ; Taylor v. Bulleon, 6 Cow., 627.
    2. As to the rule that the shipper has a reasonable time, and the party must offer himself, see Abb., 406, and notes to Perkins’ Ed. ; Fland. on Shipping, §§ 244 to 249.
    YII. The plaintiff' did not prove that there was any contract by which the passage money was agreed to be refunded in case the passengers were not delivered at the port of destination, nor did he show any liability so to refund, and the case is not changed from what it was when formerly before the Court. There should, therefore, be judgment for defendants. (S. C., 4 Bosw., 447.)

      William Cutting and Daniel Lord, for plaintiff.
    I. The plaintiff, as the party with whom the contract was made in trust for all the owners, can maintain this action in his own name. (Code, § 113 ; 2 Phil. on Ins., § 1965.)
    II. The basis of the policy was the mutual supposition that the passage money, although paid in advance, could be recovered back from the insured in case the voyage was not performed.
    1. The attaching of the policy depended on the payment of the passage money in advance.
    2. By the express terms of the passenger contract, the passage money was paid on the owners’ undertaking to provide a passage in the ship, to victual the passenger, and to land him at the port. And this form of the contract was imperative by the act of Parliament of August 14. 1855.
    The stipulation as to landing the passenger was not contained in the form of contract, under the former English passenger act of 1852.
    3. This act of 1855 being in full effect when the policy was renewed in October, 1855, gave specific substance to the subject insured, as much as if a special agreement, to the same effect, had been made at the commencement of the voyage in question.
    IH. By the defeating of the voyage by the perils insured against, the owners lost their right to retain the passage money, and a total loss accrued under the policy.
    1. The subject insured was a contract, and the rights to exist under it, against their being lost by perils of the sea; when by the specified perils the right, under the contract, is defeated, then the loss has occurred which the policy insured.
    2. The passenger contract, like that of freight, is an entirety, and a complete performance is a condition to a right to receive the compensation, or to retain it if paid in advance. (Phelps v. Williamson, 5 Sand. S. C. R., 581 ; Griggs v. Austin, 3 Pick., 21 ; Brown v. Harris, 2 Gray, 359 ; Cope v. Dodd, 13 Penn. R., [1 Harris,] 35.)
    3. It is not material that, in case of a loss of the ship, the passenger could not claim to be carried on. He can claim that, as he has not been carried on, according to the condition of his engagement, he should not pay as if he had been.
    4. The passenger act, and course of business, moreover, clearly establish the contract to be on these conditions; and the passage ticket being now shown to require a landing of the passenger, the opinion of the court on the former trial of this case is decisive.
    PV". The subject of insurance here was the ship-owner’s right under the passenger contract. That right being lost, as between the ship-owner and passenger, by perils of the sea, the insurer cannot refuse performance of his contract to pay the loss ; this would make the contract idle on his part.
    1. The contract of insurance is not a mere guaranty against the claims of the passengers, requiring suit against the ship-owner, on their part, to show him damnified. It is an engagement, in the event of a loss, to pay him what the ship would have earned but for the perils insured, leaving to him to meet the engagements of every kind which he may have made.
   Moncrief, J.

The case as presented upon this appeal differs from that previously heard and decided, (4 Bosw., 447 ;) among other things, in this, that upon the first trial there was no evidence, other than the policy in question, which tended to show the character or import of the contract between the passengers and ship-owner, and from which the duty or right could be implied of the owner of the vessel to transport, deliver, or land the passengers at some particular port or place. The policy of insurance, in my opinion, does not in plain terms contemplate the probability or even the possibility of the shipper being called upon and made liable to refund the amount of the passage money which he was to receive from the passenger before taking him on board the vessel. The construction to be given to the policy, standing alone, I think is plainly otherwise, and the more reasonable intendment of the parties presumed to be that the assured sought indemnity against detention and consequent damage thereby. Upon the present trial, however, there is no longer room to doubt as to the nature of the contract by which the shipper and passenger were bound, the latter to pay the stipulated price upon being received on board of a vessel destined for, and the former to transport and to land the passenger at the particular port, Hew York.

This contract was never performed; tie passengers were not carried and landed pursuant to the terms of the agreement, the vessel with all the passengers having been lost at sea. The loss sustained by the assured, therefore, is what he might and could have earned had the vessel performed the voyage and arrived safely at the port of Hew York.

The ship-owner had a lien upon the unearned passenger money, and an insurable interest. (Pars. Mer. Law, p. 413.)

The mere fact of payment having been made to the shipowner in advance, under the terms of the contract, cannot vary or impair the rights of the passengers, or change the relation of the assurer and assured. The payment in advance enabled the plaintiff to set the policy running, entitled the passenger to come and remain and be victualed on board of the vessel, and created the ship-owner trustee of the money of the passengers until, having earned it by performance of his contract, the ship became entitled thereto, or failing so to do, the right of the passengers to claim a return of the money became perfect. (4 Bosw., 447 ; 5 Sand. S. C. R., 578-582, and cases cited; 1 Pars. on Mar. Law, 158, et seq. ; 29 E. L. and Eq. R., 115-117.) The presumption always is in favor of contracts having been made in accordance with the requirements of law. The agreement between the passenger and the ship-owner was made in England after the passage of the Act of Parliament of August 14, 1855 ; and the Court properly therefore assumed, no evidence appearing to the contrary, that it was made in conformity with the provisions of this Act. The renewal of the policy in October, 1855, operated and had the like effect as the making of a new contract under that date, of the terms and effect of the policy of insurance issued and delivered in January, 1855.

The objection to proof of waiver of preliminary proof of loss and interest (appearing in the case although not argued or noticed in the points) is not well taken and was properly overruled. (20 Pick., 389 ; 3 Sand. S. C. R., 42 ; 6 Cush., 345 ; 2 Kern., 97 ; 9 John., 192 ; 3 Comst., 128.)

Upon the evidence adduced before the Court it appears that a liability arising upon the contract with the passenger is clearly fixed, and the right of the plaintiff to recover (in the absence of proof that the law in England differs from that of this State) does not depend upon his having discharged the liability. (1 Sand. S. C. R., 124 ; 3 Seld., 583.) The liability of the plaintiff arises as a matter of law upon the contract shown to have been made with the passenger; no averment thereof was necessary.

Judgment should be entered in favor of the plaintiff for the amount of the verdict, interest, &c.

Bosworth, Ch. J., and White, J., concurred.

Judgment for plaintiff ordered.


source: Caselaw Access Project

author: By the Court—Bosworth, Ch. J.

license: Public Domain

text:
    Peter Poirer et al., Plaintiffs and Appellants, v. John W. Fisher, Defendant and Respondent.
    1. The rules as to variances between the complaint and the facts proved which may be disregarded under the Code—stated.
    2. In an action on contract for the recovery of money, in which the complaint charged the defendant as agent and supercargo for the plaintiff, and with not accounting and paying over; the answer alleged, that the transaction was a joint adventure, and the referee so found; Held, that it thus appearing, the defendant was indebted substantially as alleged in the complaint, the action should not be dismissed for this variance.
    3. It makes no difference in such a case that the defendant had been arrested in the action, on the ground of the alleged agency.
    (Before Bosworth, Oh. J., Moncrief and White, J. J.)
    Heard, May 14;
    decided, June 1, 1861.
    Appear from a judgment entered upon the decision and report of John P. Crosby, Esq., as Referee, dismissing the complaint, with costs.
    The complaint avers, that the parties to this action entered into an agreement, that the plaintiffs would charter a vessel, purchase a cargo for her, .and advance or pay the price of it, and send the vessel to Guadaloupe, and the defendant would go “in the vessel on such voyage, as agent and supercargo thereof, and as such agent or supercargo, would take charge of and sell” the cargo, and “account for and pay over to the plaintiff the proceeds;” it being further provided, that he should receive a portion of the net profits as his share of the adventure. That accordingly, the plaintiffs chartered a vessel, and a cargo having been purchased, she was dispatched therewith to Guadaloupe. That the defendant went out in her, as such agent and supercargo, in charge of, and there received and sold the cargo, and collected the proceeds; and although he has remitted a portion thereof to the plaintiffs, yet he has not fully accounted for the proceeds, and that he is indebted to the plaintiffs on account thereof, in the sum of $2,500; for which sum the complaint prayed judgment.

      The answer puts in issue every allegation of the complaint, and then proceeds to state the contract substantially in the same terms, except that the enterprise was on joint account; that a vessel was chartered, and a cargo purchased and shipped; that the defendant went out in her with the cargo, and received and sold the same, and that he is ready to account therefor.
    The plaintiffs caused the defendant to be arrested and held to bail in the action.
    The Referee, to whom the cause was referred, found that the parties entered into an agreement to charter a vessel for a voyage to Guadaloupe, to purchase a cargo therefor, consisting of guano, horses, carriages, lumber, &e., the defendant to go out in the vessel in charge of such cargo, and there receive and sell the same, and collect the proceeds thereof, for which services he was to make no charge, but iu lieu thereof he was to have a share in the net profits of the adventure, that is to say, one-third of the °net profits arising from the purchase and sale of the guano, and one-half of the net profits arising from the purchase and sale of the residue of the cargo, and the losses, if any, were to be borne by the plaintiffs and defendant, as joint owners, in the same proportion.
    That the plaintiffs accordingly chartered a vessel and a cargo consisting of guano, horses, carriages, lumber, &c., was purchased and shipped on board thereof, for which the master signed bills of lading acknowledging the receipt thereof, and undertaking to deliver the same to the defendant, &c., at Guadaloupe.
    . That the vessel sailed for Guadaloupe, with the cargo on board, and which the plaintiffs had caused to be insured. The defendant went out in the vessel in charge of the cargo. Shortly before sailing, the plaintiffs delivered to him the bills of lading, also invoices of the cargo, with a letter of instructions.
    That the defendant received the cargo at the port of destination, and there, by himself and his agents, sold the same and received the proceeds thereof. That the gross proceeds of the cargo amounted in all to the sum of $13,651.34; and he paid various sums for commissions, for selling the cargo and expenses, (as shown by his account sales,) which left a balance of $12,446.76, as the net proceeds which he received.
    That the cargo was all purchased by and in the name of the plaintiffs, except nine horses and a small bill of lumber, amounting to $52, which the defendant purchased.
    That there was a net profit on the adventure amounting to $327.56, which was received by the defendant, and that he has not paid to the plaintiffs their proportion thereof.
    That the defendant was, at the time of the commencement of this action, indebted to the plaintiffs upon the transactions aforesaid, in the sum of $1,470.84, with interest thereon, besides their share of the said net profits, but that such indebtedness did not arise in a fiduciary capacity as alleged in the complaint, and that no sum whatever was or is due to them in a fiduciary capacity.
    At the hearing before the Beferee, the plaintiffs’ counsel moved to amend their complaint, by making it conform to the facts as proved. The Beferee denied the plaintiffs’ motion; to which ruling and decision the plaintiffs’ counsel duly excepted; and he granted the defendant’s motion to dismiss the complaint; and reported as a conclusion of law that “the plaintiffs have failed to show any cause of action against the defendant, as charged in the complaint, and that the defendant is entitled to a dismissal of said complaint, together with his costs of this action.”
    Judgment was entered upon the report of the Beferee in favor of the defendant, and the plaintiffs now appealed.
    E. H. Owen, for appellant.
    I. The Beferee erred in dismissing the complaint.
    1. Having found that the defendant was indebted to the plaintiffs upon the transactions “ embraced within the issues found by the pleadings,” he should not have disjnissed the complaint.

      2d. It was immaterial whether such sum was due in a fiduciary capacity. Ho such issue was raised.
    3d. If, however, that question be within the issues and material, the testimony clearly establishes that such indebtedness is fiduciary, and the Referee erred in finding the contrary.
    1. It is admitted by the answer, and also found by the Referee as a fact, that the defendant did go out in the vessel, in charge of the cargo, to receive and sell the same at a foreign port for account of the parties interested. He was a supercargo, or, in other words, an agent. (Story on Ag., § 33, note 3.)
    2. “Fiduciary” means “in trust, in confidence.”
    The cargo was placed under the defendant’s charge, “in trust and confidence,” that he would receive and sell and faithfully account.
    3. He has violated such “ trust and confidence” by wrongfully appropriating proceeds which belonged to the plaintiffs.
    The contract was fiduciary and his indebtedness equally so. (Burr. Law Dict., “Fiduciary ;” Stoll v. King, 8 How. Pr. R., 298 ; Republic of Mexico v. Arrangois, 11 Id., 1 and 576 ; Frost v. McCarger, 14 Id., 131.)
    4th. The fact that the defendant was interested in the cargo did not alter the case.
    His rights and authority as part owner were suspended and modified by the agreement under which the property was shipped, and in his new character of supercargo. He parted with the possession and control of the property in transitu, and his functions as supercargo did not commence until the arrival of the vessel at Guadaloupe. (Catlett v. Pacific Ins. Co., 1 Paine’s C. C. R., 619 ; Same parties, 1 Wend., 561.)
    II. There was no material variance between the averments and the facts proved, and the variance, if any, did not mislead the defendant to his prejudice. (Code, §§ 169, 170 ; Catlin v. Gunter, 1 Kern., 368 ; Cotheal v. Talmage, 1 E. D. Smith, 573 ; Harmony v. Bingham, 1 Duer, 209 ; Fay v. Grimsteed, 10 Barb., 321.)
    1st. The facts as proved corresponded with the allegations, so that there were sufficient averments upon which to base a judgment. (Code, § 275 ; Bate v. Graham, 1 Kern., 237 ; Emery v. Pease, 20 N. Y. R., 62 ; Hall v. Gould, 3 Kern., 127 ; Marquat v. Marquat, 2 Id., 336.)
    2d. But if there was any variance, the Referee should have granted the motion to amend, and his refusal may be reviewed on appeal. (Code, § 169 ; Russell v. Coun, 20 N. Y. R., 81 ; Roth v. Schloss, 6 Barb., 308.)
    III. The Referee erred in allowing leading questions to be put to the defendant on his cross-examination in his own behalf.

      H. Andrews, for respondent.
    It is sought to obtain a judgment against defendant for an alleged breach of trust, in neglecting and refusing to pay over to the plaintiffs, money alleged to have been received by him as their agent.
    For such alleged breach of trust, the plaintiffs caused the defendant to be arrested and to give bail.
    The complaint falsely states, that, as their agent, thb defendant is indebted to the plaintiffs.
    There is upon the evidence no dispute as to the defendant being a partner, or joint owner with the plaintiffs in the cargo.
    Such being the agreement, the defendant might lawfully retain the whole proceeds of the cargo in his hands (except as to the 50 tons of Guano for which he was the plaintiffs’ agent), and not be liable to arrest. (Goodrich v. Dunbar, 17 Barb., 644 ; Angus v. Dunscomb, 8 How. Pr., 114 ; Cary v. Williams, 1 Duer, 667.)
    It is admitted that, before the action the defendant had paid over to the plaintiffs more than the net proceeds received by him on the sale of the 50 tons of Guano, as to which he was their agent.
    Hence, the form of action chosen, and the allegations contained in the complaint, were wholly unsustained by the proof.
    Where the allegations are wholly unsustained by proof, a referee cannot permit an amendment. (Walter v. Bennett, 16 N. Y. R., 250.)
    And his refusal being matter of discretion, is no ground for exception. (Russell v. Coun, 20 N. Y. R., 81.)
    If ever there has been a wholesome exercise of discretion as to amendment, it has been in this case, which shows conclusively, that a gross fraud has been practised on the Judge who granted the order of arrest on affidavits and complaint, (sufficient on then face,) but, in fact, false.
    It is an attempt by sharp swearing at the commencement of a suit, to force defendaht into an immediate settlement upon plaintiff’s terms.
   By the Court—Bosworth, Ch. J.

It is ouly where the allegation of the cause of action is unproved, not in some particular or particulars only, but in its entire scope and meaning, that a complaint can be dismissed for a failure of proof. (Code, §§ 171, 147.)

When a plaintiff proves the substance of the allegation of the cause of action; though he may fail to prove some particular or particulars of it, the variance is to be disregarded as an immaterial variance, unless the defendant shall prove at the trial, to the satisfaction of the Court, that the alleged variance has actually misled him, and in what respect it has misled him. (Id., §§ 169, 145 ; Catlin v. Gunter, 1 Kern., 368.)

Where an answer has been interposed, the plaintiff is entitled to any relief to which the facts proved entitle him, provided such facts are embraced within the issue, and the relief to be granted, be consistent with the case made by the complaint. (Id., §§ 275, 231 ; Marquat v. Marquat, 2 Kern., 336, 342.) The matters in a complaint which do not tend to show a right in a plaintiff, may be disregarded as surplusage, if there are other facts which make out a cause of action. (Id., 342.)

The difference between the allegations in the complaint essential to a cause of action, and the facts as found by the Eeferee, is slight. The complaint alleges an agreement between the plaintiffs and the defendant, whereby the plaintiffs were to hire and charter a vessel for a voyage, and purchase a cargo, and the defendant was to go in the vessel on such voyage, as agent and supercargo thereof, and whereby the defendant was to have a specified part of the net profits, and pay over the residue of the proceeds of the cargo to the plaintiffs.

The Eeferee has found an agreement between the plaintiffs and defendant to charter a vessel for the voyage; purchase a cargo; that the defendant should go out in the vessel in charge of such cargo; that he was to have a share in the net profits of the adventure, and that the losses, if any, were to be borne in the proportions, that any profits made were to be shared.

It is found that the plaintiffs chartered the vessel, that a cargo was bought, the vessel sailed, the defendant went in the vessel in charge of the cargo, and sold it and received the proceeds; that the plaintiffs purchased nearly all the cargo, and paid for the whole of it except $1,288.-83, which sum was paid by moneys advanced by the defendant; that the defendant still holds $1,470.80, besides interest, proceeds of the adventure, to which the plaintiffs are entitled.

These facts entitle the plaintiff to a judgment for the $1,470.80, and interest.

But the Eeferee dismissed the complaint on the ground that the defendant, though indebted in this sum, was not indebted in a fiduciary capacity. There is no allegation in the complaint, in terms, that the defendant is indebted in a fiduciary capacity.

We infer from the ease, that the defendant was arrested and held to bail; and that the Eeferee, being of the opinion that the facts as he found them would not warrant an arrest on the ground that the defendant was indebted in a fiduciary capacity, held, as a logical and legal sequence, that no recovery could be had in this action against him.

If the defendant had not been arrested and held to bail, it is not clear that the Referee would have felt any difficulty in giving judgment for the plaintiffs.

If a complaint, besides alleging the existence of a debt owing by the defendant to the plaintiff, should aver that it was fraudulently contracted, and state the facts relied on as establishing the fraud, proof of the existence of the debt would entitle the plaintiff to judgment, though no evidence should be given that it was fraudulently contracted. All the allegations as to the fraud form no part of the essentials of the cause of action. The plaintiff' would be entitled to judgment, although the defendant might have been unjustly arrested and held to bail.

There may, possibly, be some ground for saying, that the facts, if true as stated in the complaint, make a case triable by a Jury, being an action for the recovery of money only within the meaning of § 253 [208] of the Code, and that the right to costs would follow as a matter of course. (Id., § 304, sub. 4.)

And that the facts as proved make a case triable by the Court, (Id., § 254 [209],) and that the costs would be in the discretion of the Court. (Id., § 306, [261].)

The complaint avers, the duty of the defendant to account to the plaintiffs, that he has been requested to account for the proceeds of the cargo, &e., and that he has neglected and refused to account. The answer alleges that the defendant was at all times ready to account, that he has often offered to do so, and the plaintiffs have always refused to come to an accounting.

The Referee’s finding of facts does not, in terms, dispose of this issue. Without expressing any opinion in regard to the views last suggested, we are quite clear, that whether the defendant has or has not been held to bail, cannot affect the question whether the plaintiffs are entitied to recover in this action, and that on the facts found it was erroneous to dismiss the complaint.

The judgment must therefore he reversed, the report of the Referee set aside, and a new trial granted, rvith costs to abide the event.

Ordered accordingly.


author: By the Court—Hoffman, J.

text:
    George Daniels, Plaintiff, v. The Atlantic Mutual Insurance Company, Defendants.
    1. Where the owner of a ship, having chartered her for a voyage, effected insurance upon the freight, earned or not earned, and the ship being wrecked near her port of discharge, the insured abandoned the freight to the insurers, and the seamen saved from the materials of the ship enough to pay their wages, and also part of the cargo, tire freight on which was also enough to pay their wages; SeM, that the wages were a charge upon the ship and owner, in exoneration of the freight.
    2. Whenever, upon a wreck taking place, portions of the vessel and portions of the cargo are saved, and the proceeds of the former and freight upon the latter are received, the proceeds of the former are first applicable to the payment of the wages of the seamen who have labored for the preservation of both.
    (Before Bosworth, Ch. J., and Hoffman and Woodruff, J. J.)
    Heard, April 4;
    decided, June 1st, 1861.
    The action was brought upon a policy of insurance on freight, and was tried before Mr. Justice White and a Jury on the 11th of January, 1861.
    The defendants, by their policy dated the 17th of December, 1857, insured the plaintiff against loss or damage to the amount of $15,000, on the freight of the ship Flying Dutchman, (the whole freight being valued at $25,000,) at a,nd from San Francisco to Hew York.
    The vessel was chartered to Moore & Eolger, for the voyage from San Erancisco to Hew York, at the time of the insurance, for the sum of $10,000, payable on arrival at the port of discharge, the master agreeing to sign bills of lading at any required rate of',freight without prejudice to the charter. The charter was dated the 15th of September, 1857.
    The ship sailed with her cargo on board about the 1st of November, 1857, and on the 14th of February, 1858, was wrecked on the coast of New Jersey, and became totally lost. On the 16th of February, 1858, the plaintiff, by a written communication to the defendants, abandoned to them his interest in the freight of such vessel, so far as insured in their Company, and claimed payment for a total loss.
    On the 24th of February, 1858, he submitted additional information and proofs, confirmed his abandonment, and renewed his claim. The abandonment was accepted by the defendants.
    At the time of making the policy, and at the time of the loss and abandonment, the plaintiff was the sole owner of the vessel, and of the freight under the charter party.
    The sailors remained by the vessel after the wreck, and aided in efforts to save the property, until they were permitted by the agents for whom it might concern, to leave, as having no further work to do.
    There were saved portions of the material and rigging of the vessel, to the net value of $3,169.63, and of cargo to the net value of $11,727.72. These sums were received by the plaintiff as agent of whom it might concern. The freight upon the cargo saved and delivered amounted to $4,276.17 above all expenses and charges. The original freight list was $14,593.78.
    If the voyage had been performed and the cargo duly delivered, the seamen’s wages would have amounted to $2,397.99. The plaintiff paid these wages. There was an adjustment, in which the wages were not charged as salvage against ship or cargo; but the amount was in effect deducted from the proportion of freight saved, so as to leave the defendants chargeable with the balance, making the freight bear the charge of wages.

      The plaintiff, as general agent of all concerned, had thus received, of freight, $4,276.17 ; from the relics of the vessel, $3,169.63, and had paid the seamen’s wages, amounting to $2,397.99. The claim was for $15,000; of which it was admitted that $12,500 had been paid; leaving $2,500, which the plaintiff sought to recover, he claiming that the wages were properly chargeable upon the savings of freight. The defendants claimed that they were properly chargeable upon the savings of the ship; and on this view the three-fifths of saved freight exceeded the unpaid part of the sum insured by $65.69, which the defendants claimed to recover as a counterclaim. The Judge directed a verdict for the plaintiffs for $2,663.88, being the balance of $2,500, with interest, and the deduction of a certain sum made by adjusters, which it is unnecessary to explain; to which direction the defendants having stated the questions of law, excepted; and thereupon the Gourt directed the questions of law to be stated in a case containing the exception, to be argued at the General Term, in the first instance, and the judgment to be' suspended until the case should be decided by the General Term. •

      Daniel Lord, for defendants.
    The claim to apply the freight to the wages must rest on some specific lien on the freight, and not on the general fact that the ship-owner owes the wages.
    ■ Eiest.—Wages, as such, are a lien on the ship, and are not a lien on the freight. The lien endures after shipwreck, if by aid of the crew, enough of the ship is saved to pay wages.
    Second.—In case of shipwreck; defeating the voyage, and causing the loss of freight, wages are saved by being compensated in the nature of a salvage, limited to the amount both of wages then due and of what is saved from the ship, and accompanied with a lien. (Brig Cato, 1 Peters’ Adm. R., 48, 57, 58 ; Catharina Maria, 2 Peters’ Adm. R., 424 ; Dunnett v. Tomhagen, 3 John. R., 154 ; Frothingham v. Prince, 3 Mass. R., 564 ; commented on 2 Gall. R., 183, and Story’s Abbott on Shipp., 752, note ; The Two Catharines, 2 Mason R., 319, 339, 341 ; Adams v. The Sophia, Gilpin R., 77, 80 ; the case of the crew ; Brackett v. The Brig Hercules, Gilpin R., 184, 188.)
    •That the crew are only entitled to their wages in their character of salvors, appears also from their right to enforce their claim against cargo saved, which is never liable for wages as such. (The Dawn, Daveis R., 121,142 ; The Cato, Peters’ Adm. R., 48, 58 ; 3 Johns. R., 154, supra ; see also 3 Kent’s Com., 195.)
    Their claim in case of shipwreck is not limited to the earning of freight, and is not. by reason of earning it, but on the ground of a lien for services actually rendered before. (The Neptune, 1 Hag. Adm. R., 227 ; The Reliance, 2 W. Robinson, 119 ; The Massasoit, 7 Law R., 522.)
    Third.—Ship and cargo are subject-to lien for salvage, but no such thing exists as a salvage lien on freight; its benefit is obtained by the lien on the other subjects. The expressions to be found, that the wages are a lien * -* * on the last fragment of freight,” are used simply to indicate that if any freight is earned, the owner is liable for wages to the extent of what is thus earned as freight; and in all instances the expressions occur in claims on the owners in personam, or where the savings from the ship are enough to pay wages. (2 Sumn., 444 ; 3 Sumn., 51 ; 5 Peters’ R., 675 ; 3 Mass. R., 563 ; 5 Mass. R., 252.)
    If freight can be deemed subject to a lien for wages, the seamen must first exhaust their remedy against the ship and the savings of it. (See Sheppard v. Taylor, 5 Peters’ R., 711.)
    Fourth.—In the present case, the proceeds of the ship were more than sufficient to pay the wages, which were a lien on it, and the wages were paid out of them.
    1. Where part of the ship is saved, subject to the lien of wages, the savings of the ship bear the wages where the insured on ship has abandoned it to underwriters, which shows wages to be a charge on the ship irrespective of the person. The saving is cum onere. (Frothingham v.
      Prince, 3 Mass. R., 563 ; The Two Catharines, 2 Mason R., 341.)
    The seamen save the wages as salvors in connection with the saving of parts of the wreck. Where the ship and freight, by means of wreck, are both converted into money, there is no reason why the wages should be paid out of one part of the money rather than the other; and the circumstance that the lien attaches to the corpus of the ship indicates the proper application of the fund. The suggestion of Mr. Phillips, (vol. 2, pl. 1719, p. 412,) is not supported by authority or reason.
    Fifth.—If the insured received the savings of freight and recovers the balance from the insurer, freed of wages, he is better off than if the vessel had safely performed her voyage, in which case he would only have received the same amount and paid the wages. But insurance should be an indemnity only.

      H. H. Owen, for the plaintiff.
    First. The seamen were clearly entitled to their wages as paid; for whenever freight is earned, wages are due and must be paid. (3 Kent, 193 ; Abb. on Ship., 632, note ; Pitman v. Hooper, 3 Sumn., 50.) The question is, therefore, who shall bear the loss of such wages, the plaintiff as ship-owner, or the defendants as insurers and abandonees of the freight.
    Second. They were properly to be paid by the defendants, out of the freight earned, because,
    I. By the abandonment and its acceptance the defendants became subrogated to the place of the plaintiff, and chargeable with all the obligations and responsibilities of his rights to freight. (2 Phil. on Ins., 2d ed., 418 ; 2 Arn. on Ins., 1178 ; Merc. Mut. Ins. Co., v. Calebs, 20 N. Y. R., 176.)
    Its effect was to pass the growing freight to the defendants, to free the plaintiff entirely from the adventure, and to entitle him to the payment of the gross amount insured as a total loss. (2 Phil. on Ins., 3d ed., § 1734.)

      II. But such abandonment and acceptance did not, in any wise, affect the seamen’s right to wages. They had a valid lien on the freight which attached to whatever was earned, and was prior to any claim of the defendants thereto. (3 Kent, 197 ; 2 Pars. on Mar. Law, 579 ; Brown v Lull, 2 Sumn. R., 443 ; Pitman v. Hooper, 3 Id., 50.)
    HI. The wages should, upon just principles, be charged to and paid out of the freight earned and collected, as the fund primarily liable therefor.
    1. Because the services of the seamen were essential in creating the fund. (2 Phil. on Ins., 3d ed., 410-412.)
    2. Because, by the abandonment, the defendants became entitled only to the salvage freight, which, properly speaking, was not the entire freight earned, but the balance which remained after deducting the expenses of creating as well as of saving it. (Sharp v Gladstone, 7 East, 35, 37 ; 2 Arn. on Ins., 1179.)
    3. Moreover, as freight is in law considered the “mother of wages,” it is the proper as well as the primary fund from which to pay wages.
    The seamen are entitled to their wages, eo nomine, if freight be earned; and if none be earned, they may resort, in the next place, to the fragments of the ship saved, and recover therefrom a salvage remuneration, but not wages as such. (The Niphon’s Crew, 13 Law R., [Monthly Law R., N. S., vol. 3,] 266 ; The Two Catharines, 2 Mason’s R., 319 ; 3 Kent, 196 ; Fland. on Mar. Law, §§ 416-420.) In those cases where the seamen have proceeded against the fragments of the ship saved, freight sufficient to satisfy the wages had not been earned. (The Neptune, 1 Hagg. Adm. R., 227 ; Frothingham v. Prince, 3 Mass. R., 563.)
    Third. This is not a case of partial loss, but of constructive total loss, which by law has the same effect as absolute total loss. (Arn. on Ins., 954, 997 ; 2 Phil. on Ins., 2d ed., 230.) Hence at the time this right to demand payment accrued, no wages were due.
    Fourth. The plaintiff, as ship-owner or otherwise, is not liable for or chargeable with such wages.

      If no freight had been earned, the plaintiff would have been entitled to the full amount of freight insured, free from any liability for wages, as no wages would have been earned. (3 Kent, 187 ; Abb., 638, and note.)
    II. The mere fact that enough freight was earned to satisfy the wages, does not render the plaintiff liable therefor. The freight so earned inured solely to the defendants’ benefit, who, as abandonees, had acquired the right and title thereto, with all the liability of ownership. (2 Arn., p. 1178, § 408.)
    III. At the time of the abandonment, when the plaintiff’s right to demand payment arose, there were no wages due to the seamen. They became due afterwards, but only because freight was earned for the defendants.
    IV. After the abandonment the plaintiff had no longer any interest in or concern with the freight. He has never derived any benefit from the services of the seamen, and should not be charged with their wages.
    V. Even admitting, that if the plaintiff recovers the gross freight insured, without deducting the wages, he will be in a better condition than if the voyage had been successfully performed, still, that in itself is no sufficient reason for varying the rule and charging him with the wages. .
    1. If such agreement be applicable to this case, it would be equally so to the case if there had been an absolute total loss of vessel and cargo. In that case the plaintiff would have also been a gainer to the extent of the wages and yet if such had been the result, he would have recovered the gross freight without any deduction for wages. (2 Phil., 3d ed., § 1744.)
    2. But this is a valued policy, and therefore such inquiry is inadmissible. (3 Kent, 274 ; Arn. on Ins., 328, 987.) Such inquiry would be in effect opening a valued policy, which is not allowed. (Shaw v. Felton, 2 East R., 109.)
    3. Even in the case of an open policy on freight when the vessel and cargo are lost, no deduction is allowed for seamen’s wages. (Stevens v. Columbia Ins. Co., 3 Caines R., 43 ; 2 Phil. on Ins., 3d ed., § 1744 ; see also 1 Arn. on Ins., 328 ; 2 Phil. on Ins., 2d ed., p. 523 ; Shaw v. Felton, 2 East R., 109.)
    4. Indemnity is not the criterion in all cases by which to determine the loss. (2. Phil. on Ins., §§ 122, 126.)
    Lastly. That wages are a lien on freight, which is denied by the defendant’s counsel, was held in the case of Poland v. Freight, &c., of brig Spartan, Ware, 134. See also 13th Admiralty Rule of U. S. Supreme Court, which provides that in suits for wages the libelant may proceed against the ship, freight and master, or against the ship and freight.

      Daniel Lord in reply. Conceding the lien of seamen on freight, it is nevertheless, after wreck, a salvage claim, and the ship must first be exhausted before resort to freight. (See 5 Peters’ R., 711.)
   By the Court—Hoffman, J.

The ancient and rigorous rule of the maritime law making the wages of seamen dependent upon the performance of the voyage and earning of freight, is unchanged to this day—so far, at least, as that if the vessel and cargo have utterly perished, wages are lost. I refer to Reed v Hussey, (1 Blatchford & Howland, 526,) as a late authority.

But this rule has, from the earliest times, been accompanied and modified by another. If anything was saved of vessel or cargo, it was applied in payment of wages. “ If a nail,” is the strong language of the Oonsolato, “ is saved from the wreck, it shall go to the salary of the mariners.”

The Hanseatic ordinance of 614 directed that if so much of the ship be saved as equals the amount of the wages, the seamen shall be paid the whole amount due them. The ordinance of Rotterdam (2 Magens, 114,) directed the payment of wages out of the relics of the ship; and, by the judgments of Oleron, “ though there should be saved of the ship only a cable or a nail, it is pledged for the payment of wages.”

By the ordinance of the French Marine of Louis the Fourteenth, “ if any part of the ship be saved, the sailors hired for the voyage or by the month shall be paid their wages out of what is saved of the wreck; and if there are only goods saved, the sailors shall be paid in proportion to the freight received; and in addition they shall be paid for the days employed by them in saving the wreck and effects shipwrecked.” (Emerigon, 116.)

The leading case of the Neptune, (1 Hagg. Ad. R., 227,) established it as a part of the English Law, that where parts of the vessel are saved by the exertions of the seamen, though no part of the cargo is preserved, the wages of the crew were to be paid out of what is rescued. Lord Stowell rejected the idea that the seamen were thus compensated in the capacity of salvors. The duty of service had continued; the relations under the contracts survived; the authority of the master did not cease at the moment of the wreck, nor the obligation of the crew expire.

The American cases abundantly sustain the rule that the remnants of the vessel must be applied to pay the mariner. They are cited in Mr. Perkins’ note to the Fifth American Edition of Abbott on Shipping, (p. 632, marginal paging.) I refer particularly to Lewis v. The Elizabeth Jane, (Ware’s R., 41,) and The Dawn, (Daveis’ R., 121 ;) and I think the weight of authority is strong to show that they do not take as salvors.

The sailor’s privilege thus adhering to the last relic of the vessel, what is the case when the vessel has utterly perished, but a portion of the cargo has been saved, and freight upon such portions is earned? Justice Stout, in Sheppard v. Taylor, (5 Peters’ U. S. R., 711,) says: “Freight being the earning of the ship in the course of the voyage, it is the natural fund out of which the wages are contemplated to be paid; for though the ship is bound by the lien of wages, the freight is relied on as the fund to discharge it, and it is also relied upon by the master to discharge his personal responsibility. We think, then, that this relation between the freight and wages does, by the principles of the maritime law, create a claim or privilege in favor of the seamen to proceed against it under the circumstances of the present case. Here the owner of the ship is also the owner of the cargo. There has been an award allowing the assignees freight, and the owners are insolvent. We can perceive no principle why, in the present case, the seamen may not justly assert a claim on the freight, if the proceeds of the ship are exhausted without satisfying the amount of the wages. Ho authority has been produced against it, and we think it justly deducible from the general doctrines of the maritime law on this subject.”

As early as the case of the Sophia, (1 Gilpin’s R., 77,) Judge Hopkixsox decided, that if any portion of a vessel was saved upon a shipwreck, the crew were entitled to their wages out of it. In the case of the Hercules, (Gilpin, 184,) he gave wages as such.

Poland v. The Brig Spartan, (Ware’s R., 134,) was the case of a libel against the freight and cargo of a vessel for wages. The Oourt held, that the seamen had a lien, as well on the freight as on the vessel. The case arose upon a charter party to the defendants, Quincy and others, who had assigned the share of the cargo belonging to themselves, and the freight of the rest, for the benefit of creditors. The seamen were provided for in certain order of preference. It was held that the freight of the goods consigned to others, and the goods of the charterers, were liable for the wages, and could be reached in admiralty.

In Skolfield v. Potter, (Daveis’ R., 392,) the learned Judge reiterated the doctrine of Poland v. The Spartan. He held, that the freight was hypothecated for the wages, and every part of the freight was liable for the whole wages. Merchandise was bound to the ship for the freight, and the freight to the seamen for their wages. And if owners of the ship are owners of the cargo, the cargo owes freight to the ship, and this freight is pledged for the wages.

The Louisa Bertha, (1 Eng. L. and Eq. R., 665,) was a suit by the mate and seamen, prosecuted against the ship and freight, and the claim was resisted by the holders of a bottomry bond. Lushimgtoít said: “The general rule, no doubt, is this—that seamen’s wages are considered a lien on the ship, and are entitled to a priority as against all other claims; as against the owners of the ship the seamen have a perfect right to be paid out of the ship and freight, even if the wages had been earned in two or three previous voyages.

In the case of the Lady Durham, (3 Hagg. Ad. R., 196,) the Court say: “A mariner has no lien on the cargo as cargo. His lien is on the ship and on the freight, as appurtenant to the ship, and so far as the cargo is subject to freight, he may attach it as a security for the freight that may be due.” Whether, if cargo was saved, it could be held to represent the freight, was a question the learned Judge adverted to, but did not decide.

The 13th rule in Admiralty of the United States Courts directs that, in all suits for mariner’s wages, the libelant may proceed against the ship’s freight and master, or against the ship and freight, or against the owner or master alone in personam.

It appears to me entirely clear, that in the case of a vessel wholly destroyed, and cargo saved, the wages attach to the freight of the latter; and I apprehend the better opinion is that the privilege exists as to any part of freight paid upon part of a continuous voyage, as well as upon that resulting from the goods saved at the shipwreck.

The next inquiry is: What is the rule, when there is saved both enough of the ship and enough of the freight to discharge the wages of the mariners? Such is the present case. It is, I believe, entirely undecided in our Maritime Law.

Emerigon discusses the question: “Are the wages to be taken on the freight rather than on the wreck ? A vessel is wrecked; the merchandise and rigging are saved; the sailors have a privilege on the freight, and on the vessel, in solido. If the sailors are paid out of the remains of the wreck, there might remain nothing for the insurers. Are the latter entitled to oblige the sailors to turn to the freight, or to reimburse themselves out of the freight for the value of the wreck absorbed by the crew? ” “ Since

the freights are fruits of the vessel, it is just that they should be first employed to pay the wages of those who have produced them by them labor. This destination comes from the nature of things, whereas the privilege on the hull is opposed to the common law, as authors tell x us,” citing Stypman, Buricke and Straccha.

He cites an Arret of the Parliament of Aix precisely to the point—where the owner, who had paid wages out of the wreck saved, and had received freight on part of the voyage, was compelled to pay the insurers on the vessel the value of the wreck saved, without allowance for wages.

But the 259th Article of the French Code of Commerce, provides, that if some part of the vessel be saved, the seamen engaged by the voyage or the month are to be paid their wages already due out of the wreck which they have saved. If the wreck be not sufficient, or if there be only goods saved, they shall be paid them wages subsidiarily out of the freight. The 258th Article had recognized the rule that in case of stranding, capture or shipwreck, with a total loss of vessel and cargo, the seamen lose them wages.

The Commentators appear to have found this article of the Code so explicit as to need little illustration. M. Pardessus, (Vol. 3, No. 681,) observes: “If apart of the ship is saved, however inconsiderable, the seamen are to be paid their wages earned from the proceeds of the remnants. There is to be deducted the expenses of salvage, whether effected by the captain, by public authority, or by volunteers. This deduction is founded on the principle of civil law, which declares that all expenditures for the preservation of a thing constitute privileges upon it.”

The author shows that the seamen may participate in the compensation for such salvage expenses, under regulations prescribed by the government in an Arret of 1801.

He then puts the case under the last clause of the article, making freight responsible when the wreck saved is insufficient, that this right covers freight earned and paid or due on the outward part of a voyage out and home.

M. Boulay Paty, in discussing this article, states the opposing views of M. Valin and Emerigon, upon the question whether the seamen have a lien for wages on outward freight received, as well as freight on the return voyage, and he concludes that they can claim upon such outward freight for wages of the outward voyage, but not for those of the voyage of return. (Droit Commercial Maritime, tom. 2, p. 225.)

Thus the authorities of the French law establish that the fortune of the ship, as Emerigon terms it—the wnole of the freight and the whole of the vessel, and each and every relic of either saved upon a shipwreck, is pledged for payment of the seamen. But that law distinguishes and makes the vessel and all that is rescued of her the first fund or subject to be resorted to, and the freight only secondarily.

I have therefore quoted the language of Justice,Story, in Sheppard v. Taylor, indicating that there may be a resort to the freight on goods saved, after the relicts are exhausted. It is proper to notice that the point did not arise, nor does the sentence appear to carry it into practice.

In the case of the Niphon’s crew, (13 Boston Law Reporter, [Monthly Law R., N. S., vol. 3,] 266,) Mr. Justice Woodbury held to the rule, in its utmost rigor, that freight is the mother of wages. That hence the saving of the vessel, in whole or in part, gives no title to wages, if freight is not earned. The earning of freight, alone, or its being earned, being prevented by the owner, eonstituted the title to wages. It was the cargo or freight saved, and not the ship, which was the seamen’s security. Therefore, if the security of freight fail, the seamen can only look to the fragments of the wreck, as salvors. This he allowed they could do. It should be observed that the positive decision was that the owners of cargo were not personally liable.

This line of reasoning is logical and consistent, if it is conceded that the moment a wreck occurs, (resulting in the loss of the cargo,) whatever the seamen do to save vessel or cargo, they do as salvors; that the relation as mariners is extinguished, and a new one established. Then the expenses of salvage are deducted naturally from the thing saved; and wages, if adopted as the rate of compensation, are part of such expenses. And then, when portions of the cargo and portions of the vessel are preserved, a proportion of such salvage expenses should fall upon each corresponding with the amount so rescued.

But the basis of this reasoning fails, if we yield, as it seems to me we must, to the argument of Lord Stowell in the case of the Heptune, that seamen cannot be, except in some rare instances, regarded as salvors. And this proposition has received the sanction of the Supreme Court of the United States, in Hobart v. Drogan, (10 Peters’ U. S. R., 110.) Mr. Justice Story states it explicitly, and adopts Lord Stowell’s definition of a salvor.

It may tend to throw some light upon a question thus undecided, if we look to the relations and obligations of the owner of the vessel to the shipper. His duty con-' tinues after shipwreck as imperative as it was before. He is bound to use every effort to protect and forward the goods. His responsibility as a common carrier survives the disaster.

In the expressive though figurative language of the maritime law, this is the duty of the ship to the cargo; and accordingly the foreign law and our own hold that the ship, in specie, is security to the shipper of goods. The whole subject is so fully examined and settled in the case of the Rebecca, (Ware’s R., 188,) that a reference to any-other authority is needless. It was held that the ship was bound, and could be libeled for damages sustained by the goods from the fault of the master.

It is true the merchandise is correlatively bound to the ship. It is so bound as to afford security for the payment of the compensation agreed upon, if the conditions are complied with and the property delivered. In the case of the Rebecca, the learned Judge quotes the Consulate of the Sea, (chs. 58 and 63,) as determining that if any part of the cargo is damaged, the captain shall bear the loss, and if he is unable to pay, the ship shall; and if the ship is sold, the merchant shall be preferred to all other creditors, except the seamen for their wages.

How, this duty would not be performed if the cargo or its owners were subject to any charge for the wages of seamen exerting themselves to rescue it. Then, as between owners of cargo and owners of vessel, the case is entirely clear. The ship must answer. But what is freight ? Practically and ultimately, it is that portion of the cargo which is necessary to pay the transportation of the whole. The shipper receives his goods subject to a burden, which it takes so much of his goods to discharge. How, to test the question justly, we must suppose a distinct ownership of the ship and of the freight. If it is the obligation of the vessel and all that remains of her to exonerate the cargo generally from the payment of wages, it seems both logical and just to hold that such portion of the cargo as represents freight should be equally excepted. Between the owner of a vessel and the owner of her cargo, the primary and absolute obligation to deliver it on payment of ' freight renders the case very clear, that the owner of the vessel must apply whatever is saved of her in exoneration of the owner of the cargo from expenses attending the delivery. Between insurers of vessel and insurers of cargo, the rule must be the same, as they are substitutes for the respective owners; and the rule seems to me to be equally just and sound, when the question arises either between insurers on vessel and insurers on freight, or as in the present case, between the owner of the vessel and insurers on freight.

The abandonment here gave a right to the insurers to all the freight received on the goods saved, had they paid a total loss. The plaintiff received the three-fifths on their account, because the plaintiff had funds sufficient to pay the wages, derived from another fund primarily liable.

My conclusion is, that whenever, upon a wreck taking place, portions of the vessel and portions of the cargo are, saved, and the proceeds of the former and freight upon the latter are received, the proceeds of the former are first applicable to the payment of the wages of seamen who have labored for the preservation of both.

In this case the claim of the plaintiff was $15,000. He admits payment of $12,500. Three-fifths of the freight collected by him is $2,565.69, so that he has received $65.69 beyond his demand, and this sum belonged to the defendant.

As the case is presented to us, there must be a new trial, with costs to abide the event.1


text:
    William Jellinghaus, Respondent, v. The New York Insurance Company, Appellants.
    1. A marine policy contained the following clause: “ In case of a partial loss by sea, or damage to dry goods, cutlery or other hardware, the loss shall be ascertained by a separation and sale of the portion only of the contents of the packages so damaged, and not otherwise.” Upon a loss occurring, the agent of the company instructed an auctioneer to sell the" goods, which was not objected to by the assured. The auctioneers failed before paying over all the proceeds. ; Held, that the company were liable for the proceeds unpaid, if it could be shown that the assured gave up the goods to the company to be sold by them, and the company assumed the sale and control of the goods as their own, and caused them to be sold on their own account, or if it could be shown that they were delivered upon an arrangement that the company should take the goods and make the sale at their own risk; but otherwise the company were not liable.
    2. Held further, that it was for the jury to say upon the whole evidence in this case whether the arrangements alleged by the plaintiff were made, and the assistant or vice-president had authority, or whether the acts of the vice-president were ratified, approved, and sanctioned by the company.
    3. The vice-president of an insurance company does not, merely by virtue of his office, have authority to receive, from the insured, goods which are injured, and to agree with him that the same shall be the property of the company, or shall be sold under the direction of the company and at their risk, so as to render the company responsible for the solvency of auctioneers employed to sell the goods. Such authority is not necessarily involved in the power to adjust losses.
    (Before Bosworth, Ch. J., and Hoffman and Woodruff, J. J.)
    Heard, April 9th;
    decided, June 1st, 1861.
    Appeal from a judgment. This was an action to recover the price which twenty-seven cases of damaged hardware, which had been insured by the defendants, on a voyage from Bremen to Hew York, were sold for, at auction in the Oity of Hew York.
    This cause had been twice before tried in this Court. On the first trial, which is reported in 1 Sandf., 18, it appeared by the evidence that the insurers named an auctioneer to sell the damaged goods, and the insured, at their request, prepared the goods for sale, and sent them to the auctioneer, who sold them, and failed without accounting for the proceeds; and the Court held that the appointment of the auctioneer must be deemed the joint act of the parties, and that'the insurers were not liable for the loss by his failure. On the second trial it was proved that the Vice-President of the insurers accepted the goods; and the court held that his authority to do so was not to be presumed, and that a verdict for the plaintiff could not be sustained, and a new trial was ordered. (6 Duer, l.)

    The third trial was had before Mr. Justice Woodbtjee, and a Jury, on the 24th day of January, 1859. The following facts were admitted by both parties on the trial.

      That on the 20th of October, 1847, an open policy of insurance for $100,000 was made by the defendants with Spies, Christ & Go., of the city of Hew York, merchants, on account of whom it might concern, on merchandise on board vessel or vessels, from Hamburg, Antwerp, Bremen, or Havre.
    That in or about July, 1848, forty-six cases of hardware, covered by said policy, and belonging to the plaintiff, were shipped from Bremen to Hew York on board the ship Charlotte Reed.
    That the forty-six cases of hardware, on the arrival of the said ship, were delivered to the plaintiff’s agent in Hew York, and that thirty-five of the said cases were damaged by sea water.
    That Spies, Christ & Co. assigned to the plaintiff their right to claim under the policy for such damage.
    That the amount of damage on eight of the said thirty-five cases was agreed upon between the plaintiff’s agent and the defendants at the sum of $88.84.
    That the invoice value of the remaining twenty-seven cases was $2,442.57, and that they were insured to that amount under the policy.
    That the net market value of the said twenty-seven cases, if the same had not been damaged, was $4,969.16.
    That the said twenty-seven cases were sold at auction, in the City of Hew York, on the 21st September, 1848, and that the proceeds of such sale amounted to $2,357.14.
    That the auctioneer’s charges and commissions for selling the said twenty-seven cases amounted to $117.86.
    That the expense of cleaning the hardware in the twenty-seven cases, and putting the same in good order for the sale at auction, was $8:98; and that the auctioneer failed to pay over the proceeds of the sale to either party.
    The plaintiff claimed that by taking the control and management of the goods, with the consent of the insured, and causing them to be sold in their own name, and for their own account, the defendants became responsible to the plaintiff for the proceeds of the sale.

      The defendants claimed that the sale was made in pursuance of a clause in the policy, which was in these words : “In case of partial loss by sea, damage to dry goods, cutlery, or other hardware, the loss shall be ascertained by a separation and sale of the portion only of the contents of the packages so damaged, and not otherwise; and the same practice shall obtain as to all other merchandise, as far as practicable.”
    The evidence offered by the plaintiff was to the effect, that the Assistant President or Vice-President of the defendants, on adjusting the loss, said to the agent of the insured that the Conqiany would require the twenty-seven cases of damaged goods to be sold at auction; that the auctioneers were employed by the defendants or their agent; that the auctioneers rendered their account of sales to the defendants, and that the defendants gave the agent of the insured an order on the auctioneers for payment of the proceeds.
    At the close of the plaintiff’s evidence, the counsel for the defendants moved that the complaint be dismissed and the plaintiff be nonsuited; which motion was denied, and the defendants excepted.
    The defendants’ evidence went to show, that the auctioneers were designated by the agent for the insured, and that the Vice-President of the defendants reluctantly as sented to employing them instead of the Company’s regular auctioneers.
    The Counsel for the defendants, after offering in evidence the charter of the defendants, renewed his motion that the complaint be dismissed; and the Judge refused to grant it, to which decision the defendants’ Counsel excepted.
    The Judge charged the Jury as follows:
    “The claim made in this case, although it arises out of a policy of insurance, and alleged acts of the parties done in consequence of their occupying to each other the relation of insurer and insured, does not, in strictness, arise on the policy of insurance, nor does it necessarily involve questions of insurance law. The Company having, as is conceded, paid the actual loss under the policy incurred by the perils insured against, the controverted question is, whether the defendants are liable to the plaintiff for the proceeds of the sale of twenty-seven cases of the insured goods sent to the auction and sold. The defendants claim that the sale was made in pursuance of the clause in the policy, which is in these words: “In case of partial loss by sea damage to dry goods, cutlery, or other hardware, the loss shall be ascertained by a separation and sale of the portion only of the contents of the packages so damaged, and not otherwise ; and the same practice shall obtain as to all other merchandise, as far as practicable.” If nothing more existed in the case, he further said, than a sale, in pursuance of that provision, it would not, of itself, render the Company liable for the proceeds. That provision pointed out the mode of ascertaining and fixing the amount of loss. Both, in such case, would be interested in the sale; the plaintiff would be interested as owner, the defendants as insurers. * * * * Upon the mere facts that the parties agreed upon an auctioneer to sell the goods, for the purpose of selling these goods in order to ascertain the amount of loss or damage, and that a sale was made for that purpose, the defendants were not liable; and that the evidence in the case was not sufficient to make them liable, upon the idea of an agreement to take these goods, as purchasers, upon a sale by the plaintiff to them of the goods.
    “ If the Jury find that the plaintiff gave up the goods to the defendants to be sold by them, and the Company assumed the control and sale of the goods as their own, and caused them to be sold for their own account, or if they were delivered upon an arrangement that the Company should take the goods and make the sale at their own risk—if, in this sense, the goods were abandoned to them and were accepted by them, then they are liable to the plaintiff for the proceeds unless the arrangement was made without competent authority.” * * * * * *

      “ The Jury are not to regard any of the acts of the auctioneer in advertising, cataloguing and otherwise, respecting the goods or their sale,' or accounting for them as evidence of the defendants’ acts, unless the Jury are satisfied that they did so with the defendants’ authority,, or unless they find that the Company ratified such acts.
    “The alleged arrangement is said to have been made with the Assistant President or Vice-President, Mr. Satterthwaite. It does not appear that, by virtue of his office, he had any authority to make such an arrangement as is alleged and claimed in this case. Mor can I say, as matter of law, that he had any such authority. Such authority is not necessarily involved in the power to adjust losses.
    “It is for the Jury to say upon the whole evidence, whether the arrangements alleged by the plaintiff were made, and the assistant or Vice-President had authority, or whether the acts of the Vice-President were ratified, approved and sanctioned by the Company.. The various circumstances in evidence, beginning with the notices of loss, the action of the Vice-President in adjusting the loss, and the matter of the sale, followed by the reception by the Company of the account of the sales as made up for the account of the Company, and their payment of so much of the loss as appeared due under the policy, and other circumstances, including the evidence in regard to the' interview between the auctioneer and the officers of the Company, are insisted upon by the plaintiff as warranting the inference that the Company authorized or approved the arrangement which the plaintiff alleges was made.”
    The Jury found a verdict for the plaintiff for $2,102.13.
    Judgment having been entered thereon, the defendants appealed.

      R. S. Emmet, for appellants.

      B. D. Silliman, for respondent.

       The cause came up again on a question of practice, which is reported in 5 Bosw., 678.

   By the Court—Hoffman, J.

The law of the case was, to a great extent, settled when it was before the General Term, in June, 1856. (6 Duer, 1.) The rule declared at a previous term, was recognized, that the plaintiffs could not succeed in the action without showing that the defendants took the goods as their own, and sold them as their own.

The learned Judge, at the trial, charged the Jury in accordance with this view: “ If the Jury find that the plaintiff gave up the goods to the defendants, to be sold by them, and the Company assumed the sale and control of the goods as their own, and caused them to be sold on their own account, or if they were delivered upon an arrangement that the Company should take the goods and make the sale at their own risk—if in this sense the goods were abandoned to them, and Avere accepted by them, then they are liable to the plaintiff for the proceeds, unless the arrangement was made without competent authority.” The learned Judge also charged distinctly, in conformity with the principles established by the General Term, in respect to the authority of Mr. Satterthwaite, and he submitted the case to the Jury as follows: “ It is for the Jury to say, upon the whole evidence, whether the arrangements, alleged by the plaintiff, were made, and the Assistant or Vice-President had authority, or whether the acts of the Vice-President were ratified, approved and sanctioned by the Company.” He called their attention to the evidence tending to establish, or bearing upon one or other of these propositions.

Ho exception was taken to the charge, or any part of it, and no exception for not charging according to either of the requests to charge.

Thus the case is before us upon two exceptions only— one for the refusal of motions to dismiss the complaint; the other as to the admission of evidence relating to explanations of certain receipts.

The first motion Avas made after the plaintiff had rested. The evidence then given by the defendant's was the testimony of Mr. Lyell and of Mr. Sattertliwaite, a stipulation signed by the attorneys, certain acts of the Legislature, and an admission as to the original complaint in the action and its contents.

We are of opinion that there was sufficient testimony before the Jury when the motion was first made, as well as when it was renewed after the defendants rested, to justify the Judge in submitting the questions to the Jury in the manner he did.

The other exception arises in this manner: Receipts of Spies, Christ & Co., signed by Meynen, their clerk, were proven, and one was for $250, in full for balance of par average and per Charlotte Weed. The evidence of Meynen was read from a printed case. He had been asked whether at the time of these receipts, there was not an agreement with the defendants that the receipts of those payments should not prejudice any claim the owner of the hardware had against the Company for the proceeds of the sale at auction. The Counsel of the plaintiff read a stipulation that the testimony of Meynen might be read from the printed case on subsequent trials, with the same effect as if the witness was present, and gave his testimony. An objection was made, overruled, and the defendants excepted.

It appears to us that this point is covered by what has been said by the Court before. (6 Duer, 4.) “ The ruling of the Judge was excepted to, for allowing evidence that the Company had agreed that the receipts given by Meynen, should be without prejudice to the claim upon the Company for the proceeds of the sale at auction. The defendants do not include this exception in their present points, and we apprehend the objection was not entitled to any weight.”

Judgment affirmed, with costs.


text:
    Marx Rothschild et al., Plaintiffs and Respondents, v. Julius Schuberth, impleaded with A. Van Berkie, Defendant and Appellant.
    Whether the admission of an agent having a general authority to transact the business of his principal and indorse notes in his name, that a note, purporting to be indorsed by him as agent, was so indorsed, is evidence of the fact of indorsing it, where the admission is made after the note matures, guare. Where an application is made to the agent before the note matures, for information as to that fact, and the principal is, at the time, absent from the > country and such agent is conducting his business, -and the applicant acts on the information given, and relying on its accuracy takes the note, the admission of the agent may be evidence against the principal.
    The evidence in this case, and the view taken by the Court of its legal effect, stated in the opinion.
    (Before Bosworth, Ch. J., and Hoffman and Woodruff, J. J.)
    Heard, April 10th;
    decided, June 1st, 1861.
    Appeal by defendant Schuberth, from a judgment, and from an order denying a motion for a new trial.
    The action was brought in October, 1856, by Marx Bothsohild, Abraham Bernheimer and Benjamin F. Saloman, plaintiffs, against Julius Schuberth & A. Yan Berkie, as defendants. It is on a note for $200, dated September 1st, made by Yan Berkie, payable two months after its date to the order of Messrs. J. Schuberth & Oo. (under which name it was alleged that the defendant Schuberth did business), and was indorsed “J. Schuberth & Oo., E. Schuberth, Att’y.”
    The main points in controversy related to the questions, whether E. Schuberth was authorized to indorse as Attorney of the defendant, and whether he in fact indorsed this note.
    The action was tried before Bosworth, Oh. J., and a Jury, ou the 3d of November, 1859. The substance of the pleadings and the material parts of the evidence, are stated in the opinion of the Court.
    B. E. Saloman, one of the plaintiffs, against the objection and the exception of the defendant, was allowed to testify that, after the note in suit was due, he exhibited it to E. Schuberth at defendant’s place of business, (the latter being then in Europe,) and E. Schuberth said it was a business note.
    When plaintiffs rested, and at the close of the testimony the defendant, Schuberth, (who alone defended,) moved for a nonsuit on the grounds, that it had not been shown that the defendant indorsed the note; nor that E. Schuberth was authorized to indorse, or had, in fact, indorsed it. The motion was denied and the defendant excepted. The ' plaintiffs had a verdict; defendant moved for a new trial. From the order denying that motion and from the judgment entered on the verdict, the present appeal is taken. The testimony as to the authority of E. Schuberth to indorse, is omitted, the decision on the appeal not involving that question. The charge of the Judge is not contained in the printed case.

      H. D. Lapaugh, for appellant.
    The conversation between E. 0. Sanderson and E. Schuberth, (detailed in the following opinion,) was not admissible as evidence. "
    The exception to the testimony of E. F. Saloman, was well taken.
    The deposition of E. 0. Sanderson, does not tend to show that he exhibited the note in suit to E. Schuberth; but on the contrary, anote for $500, and that was exhibited before the note in suit was made. There is not, therefore, any evidence, that E. Schuberth indorsed the note in suit.

      E. H. Owen, for respondents.
    E. 0. Sanderson had acquired sufficient knowledge of E. Schuberth’s handwriting, by his admission of the genuineness of the indorsement on the note shown to him, to entitle him to testify in relation thereto. (Johnson v. Daverne, 19 J. R., 135 ; Cunningham v. H. R. Bank, 21 Wend., 557 ; Edwards on Bills, 706.)
    Whether the note in suit, or the one for $500 was shown by Sanderson to E. Schuberth, was a question of fact for the Jury, and the evidence was such as to make the submission of that question proper. The judgment and order should be affirmed.
   By the Court—Bosworth, Ch. J.

The defendant is sued as indorser of a note made by the defendant, A. Van Berkie, dated August 1, 1856, payable to the order of Messrs. J. Schuberth & Co., two months after its date, for the sum of $200. The complaint alleges that “ Messrs. J. Schuberth & Co.” mean the defendant Schuberth; that he indorsed the note; that it was duly protested, and is owned by the plaintiffs, and is unpaid.

The answer denies that the defendant indorsed the note, and denies the allegation of its due presentment and protest, or that the defendant was notified thereof.

The note purported to be indorsed, “ J. Schuberth & Co., E. Schuberth, Att’y.” Passing over the question of the power of E, Schuberth to indorse it, no one proves that he in fact indorsed it, or that the indorsement is in his handwriting.

The only witness testifying in respect to that fact is E. 0. Sanderson. He says that in the summer of 1856 he went to defendant’s store with “ a note,” “ purporting to be made by A. Van- Berkie, and to be indorsed by J. Schuberth & Co., E. Schuberth, Att’yshowed it to a person there who said his name was E. Schuberth, “ and laid it on the desk with the indorsement up, and asked him if he had signed that note as attorney; he said that he had, that that signature was his signature.”

The note in suit being shown to the witness, he further testified: “I should say that was the signature, as near as I can judge of signatures. I mean the signature of the indorsement of J. Schuberth & Co., Att’y E. Schuberth ; I would not like to swear to it, but it looks like it, and I think is the same signature; I consider myself a judge of signatures, and have had a great deal to do with such matters* and have had occasion to become familiar with the examination of signatures ; I have no doubt it is the same signature.”

E. Schuberth testified thus : Sanderson “ made inquiry in regard to a note in July, 185G; he inquired about a $500 note; Sanderson never brought to me the note in suit. * * Sanderson never produced to me 'any note but the $500 note.”

We think it quite clear that Sanderson, in expressing his belief that the note in suit was “.the same signature,” was understood as testifying to his belief that the note in suit was the very note he presented to E. Schuberth, and which the latter admitted he indorsed..

If understood as testifying to his belief of the genuineness of the signature upon the note in suit, from its resemblance to that which he presented, the testimony of E. Schuberth would be wholly irrelevant. So understood, he did not affirm that he presented the note in suit, nor intimate that he ever saw it before. The only point of E. ¡Schuberth’s testimony is, that the note in suit was never presented to him; that only one note was presented by ¡Sanderson, and that Avas a note for $500. He was not .asked by either party whether he indorsed it. The defendant objected to the evidence of Sanderson being received, '(it being contained in a deposition,) on the ground that “ what E. Schuberth the attorney said ” was not competent ■evidence.

The Court allowed it to be read, in connection with the other papers offered with it, and the defendant excepted. We think it must have been admitted, on the ground that the alleged admission related to the note-in •suit, and that it was indorsed by virtue of the power of attorney which the plaintiffs were seeking to- prove , by .■secondary evidence.

If the admission was understood to. have been made Avith reference to another note, in no way connected with ■that in suit, we think it incompetent as an item of evidence to prove that the note in suit was indorsed by the attorney. Viewed as an admission relating to another note, Sander-son must be understood as testifying that from seeing a signature which E. Schuberth admitted to be genuine, he believed the one in suit was genuine.

The equivocal language of Sanderson, “I consider myself a judge of signatures, and have had a great deal to do with such matters, and have had occasion to become familiar with the examination of signatures; I have no doubt it is the same signature,” when viewed in the light of the other evidence given, and of the proceedings had at the trial, must be understood as used to express his reasons for being able to identify the signature upon the note in suit, as the same signature which E. Schuberth admitted to be genuine.

In this view of the evidence, it was not sufficient to establish the fact of indorsement by the attorney. E. Schuberth testified that this note was never shown to him by Sanderson, but stated what note was, and the latter was not recalled to prove that he never presented or had in his possession a note for $500, thus indorsed, nor to deny that he presented the note he did present, in July, 1856, whereas the note in suit is dated August 1, 1856.

It is not entirely clear that the admission of E. Schuberth was competent evidence to prove that he indorsed the note.

The objection is, that the admission relates to a past transaction; and that although what an agent says during a transaction within the apparent scope of his authority and forming part of the res gestee, is admissible; yet what he says at a period subsequent to its conclusion is not evidence. (4 Wend., 354.) Thus it has been held, that the declarations of one who had been an agent- to make a contract, after he made it, though he was still agent to make like contracts for the same party, were inadmissible to affect his principal in respect to the terms or construction of the former contract, for they were not part of the res gestee. (Haven v. Brown, 7 Greenl., 421 ; Cow., Hill & Edw. Notes, vol. 1, 512.)

But the act of making the indorsement being proved, if it was shown, by way of defense, that the note was one which, in fact, the attorney had no right to indorse, yet being one which, on its face, was apparently within the power, a plaintiff might show that before taking it, he applied to the attorney for information as to its character, and his representations of its being of the character which the power apparently embraced, and that the plaintiff took it and paid value, relying on such representations. Such a holder might, probably, show the admissions by the agent of the genuineness of the indorsement, proving that it was a representation on which he had acted. Such admissions, when admissible, operate by way of estoppel, and may bind the principal, though false in fact. (Farmers' and Mechanics' Bank of Kent Co. v. Butchers' and Drovers' Bank, 16 N. Y. R., 135, et seq.)

But this case, at the trial, raised no such question. The only questions in this regard were, whether the note, on its face, was one which the terms of the power apparently authorized the attorney to indorse, and whether he in fact indorsed it.

We think the defendant was entitled to a nonsuit upon the evidence, as the case presents it.

The judgment must be reversed and a new trial granted, with costs to abide the event.