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Assuming, as I am warranted in doing, that no adjudication upon this point adverse to the libellant's position can be produced, and failing to find in the argument of the learned counsel of the claimant, or in the text-books to which reference is made, any sufficient answer to the argument in support of that position, I ain constrained to concur in the views of the libellants. No satisfactory reason is assigned or suggested by Sir WILLIAM Scott, or any commentator, or by the learned counsel of the claimant, for holding that a part-owner of a ship, who secures for himself an appointment as master of the craft, is entitled to retain his office and keep possession of the vessel until he shall see fit to resign or surrender, against the expressed will of the majority of the owners,—unless that majority can show reasonable and sufficient cause,-some misfeasance or nonfeasance for his removal and deposition. Of special contracts between a ship's master and a ship’s owners I am not now treating, but of the relations between a master who is also a part-owner and his co-owners after his appointment. Is the part-owner who is appointed master of a ship endowed with any new or additional right as a part-owner ? When, on his election he steps upon deck, are his relation to the ship and his rights in and over it the same as those of a partowner of a horse, in his exclusive custody in and over that horse, as settled at common law ? To these inquiries it is believed a negative answer must be given. The individual remains a partowner, with all his rights as such, as before his appointment to the mastership, and no more. As master he is to be regarded simply as the agent of the owners as a body, with no other rights qua master than he would have were he not a shareholder. This, as it seems to me, is, or of right ought to be, regarded as the better law upon the point in question. It is, as is believed, consistent with well-settled and familiar rules and principles, while its opposite leads logically and necessarily to results and conclusions which the profession would be slow to adopt, and the business community quick to condemn. Refraining from further remark upon this point, as supererogatory labor, I sustain the point raised in limine by the libellants as above presented.
It is obvious, moreover, that by the amendment of their libel above mentioned it is made to conform to the views of the English jurist. A “special reason” and “causes of dissatisfaction" are set forth; but how “minutely" these causes should be considered
-whether as matters of contestation upon proofs and argument or not-is left by him to the conjectures of his readers.
Of the evidence submitted by the libellants in the case in support of their charges or allegations of incompetency, and of misusing and overstraining the Middleton, it is sufficient here to say that it failed to substantiate those charges when weighed in the balance with the claimant's proofs in rebuttal.
Assuming it is proven or admitted that the libellants are owners of 23-32 of the schooner, and the claimant owner of 2-32 only (the owners of the remaining 7-32 not entering appearance), and that the claimant, though requested, has refused to surrender possession, I must pronounce for the libellants, unless ground for a contrary judgment is found in the second defensive allegation of the claimant's answer, already stated in substance.
On recurring to this it is seen that he claims to have been unanimously appointed captain of the Middleton in the winter of 1871, and in proof of this he exhibits the subscription list upon which the owners contracted for their several shares-reading thus: “We, the subscribers, agree to take or hold the respective shares set against our names of schooner Allen Middleton, Jr., said vessel to be commanded by Captain Samuel Gladding. Providence, November 30th 1870." Of this portion of the allegation and its proof I deem it sufficient to say that its relevancy and importance I have failed to perceive, inasmuch as the claimant proceeds to aver that subsequently, viz., on the 3d of March 1871, a more formal agreement or contract between himself and his co-owners was made, in view of which, as he strenuously contends, the court should refrain from interfering “to aid either party in attempting to violate it.”
In the construction of this writing referred to, contended for by the claimant, I am unable to concur, and this whether it be considered separately from or in connection with “surrounding circumstances” concerning which testimony was received under objection. The co-owners of the vessel (the claimant among them), on the 3d of March 1871, convened to ascertain the then will of the then majority in regard to the use of their joint property, and the action and will of the majority, so far as need here be inquired, was embodied in the following paper, to which the signatures of owners of 16-32, and no more, of the vessel (including the claimant owning 2-32) were attached :
“It is agreed between the owners of schooner Allen Middleton, Jr., and Captain Samuel Gladding, as follows:
Captain Gladding is to command the schooner so long as he gives satisfaction to the owners, and she is to be employed in the freighting business between ports not south of Cape Henry, and all northern and eastern ports.
“The division of gross earning is to be as follows :—Captain Gladding is to receive 3-5, and the owners 2-5 of the same. Captain Gladding to victual and man the vessel and to sail her, paying all port charges and all other charges appertaining to the running of said vessel, the owners only to pay such bills as are necessarily incurred in keeping the schooner in good running order. Captain Gladding is to make up his account after every trip, and after making deductions named above, he is to divide the balance among the owners.
“It is agreed that all bills made up for expenditure on the vessel shall, before being charged in Captain Gladding's account, be submitted to Mr. James M. Cross, of Providence, for his approval. Before the vessel leaves Providence all bills against the schooner are to be collected, and accounts made up by Captain Gladding and presented to owners for payment.”
It is noticeable that of the seven signatures to this instrument (including Captain Gladding's) four are included among the libellants, and two have disposed of their shares.
For dissenting from the construction given by the claimant to this contract, it seems not necessary to state in full my reasons. It must suffice to say, that even did it bear the signature of each and every owner (instead of only half of them), and were they now, all of them, still owners (which is not the fact), and were there not now (which is the fact) owners who had no interest in the vessel in March last, I should nevertheless hold that the majority in interest is entitled to the possession of the vessel, either as against the claimant alone, captain and part-owner though he be, or against him and his co-owners of the minority. That the co-owners of a ship may not, by contracts and covenants or otherwise, estop themselves from exercising their rights in regard to the appointment or removal of a master, or the control and management of the ship, is not affirmed. It suffices to say that, under the facts in the case, the contract of March 31, exhibited in proof, lacks more than one of the essentials of a contract of that species.
Against any injury or wrong from mere wilfulness, caprice, or favoritism on the part of the majority owners of a ship, the master contracting can protect himself by bond, covenant, or otherwise; and if he neglect thus to guard his interests, himself, not the law, should he blame, if his employers dismiss him at a moment's notice, and without (so far as he may know or is entitled to know) any cause, reasonable or unreasonable.
ABSTRACTS OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF GEORGIA."
SUPREME COURT OF KANSAS.?
CONTRACT. Penalty and Liquidated Damages.- Where there was a written agreement that one party would furnish and the other take all the crude turpentine made on a certain plantation when delivered in lots of forty barrels and pay for the lots on delivery, and if either party failed he should forfeit $1000, Held, that the $1000 is to be considered a penalty and not liquidated damages, and on a failure of either party the actual damages are all that can be recovered : Lee, Wylly & Co. v. Overstreet, 42 or 43 Ga.
DEBTOR AND CREDITOR. Sale with Intent to defraud Creditors— Innocent Purchaser.— When one party sells goods with the intent to defraud his creditors, but the other party purchases them in good faith and without notice of such fraudulent intent, the purchaser obtains a good title to the goods : Diefenlorf v. Oliver et al., 8 Kans.
In such a case if the purchaser pays for the goods by giving to a third person his negotiable promissory notes (four in number) he is not thereafter indebted to the person from whom he purchased the goods. After two of the notes have been paid, but before the other two have become due, which other two still remain in the hands of a person who took them with notice of the fraudulent intent of the person who sold the goods, the giver of the notes cannot be garnisheed by the creditors of the person who sold the goods : Id.
EVIDENCE. Declarations.—Declarations to be admissible as part of the res gesta
| From J. H. Thomas, Esq., to appear in 42 or. 43 Georgia Reports. : From W. C. Webb, Esq., Reporter ; to appear in 8 Kansas Reports. . From Hon. 0. L. Barbour, Reporter; to appear in Vol. 61 of his Reporta.
must be contemporaneous with some principal fact which they serve to qualify or explain : State v. Montgomery, 8 Kans.
FRAUDS, STATUTE OF. Estate in Land by Operation of Law not within.—While sect. 8 of the act concerning conveyances (Gen. Stat. 180), sects. 5 and 6 of the act relating to frauds and perjuries (Gen. Stat. 505), and sect. 1 of the act concerning trusts and powers (Gen. Stat. 1096) make void every parol agreement which attempts to create an estate in lands, yet said sections do not make void an estate which results or which is created by operation of law: Moore v. Wade, 8 Kans.
HIGHWAY. Dedication to Public Use.—A mere project or plat of land upon paper, laying off streets, blocks and houses in a city, is not itself a dedication of the streets to public use, and when there is a proposition to the city authorities to receive and adopt said streets, as public streets, the dedication is not complete unless the authorities affirmatively receive and adopt the same, and this must appear by the minutes of the council: Parsons et al. v. The Atlanta University, 42 or 43 Ga.
In the absence of any formal acceptance by the public authorities of a dedication of a street, there must be clear proof of a continuous and notorious use for a reasonable time by the public to constitute an acceptance: Id.
Where there is a controversy pending between the public authorities and a citizen as to the existence or non-existence of a public street, and the public authorities are temporarily enjoined by bill from opening the same, it is not competent for private citizens, as such, to file a new bill pending the other, to enjoin the obstruction of the street, unless they show some special damages to themselves from said obstruction, different from the injury to the public: ld.
HUSBAND AND WIFE. Judgment—Party not served.-A husband cannot, without authority from his wife, acknowledge service of a summons for her: Moore v. Wade, 8 Kans.
A judgment rendered against a party who has not been served with summons, and who has not made any appearance in the case, is erroneous : Id.
A judgment determining that a woman has no right or interest in a certain piece of land, except such as she may have by virtue of being the wife of a certain man, is a judgment affecting her substantial rights: I.
Power of Wife to Contract—Right to Earnings.—By virtue of the Statutes of 1860 and 1862, relative to the rights of married women, a married woman may make bargains, carry on any trade or business, and perform labor and services on her own separate account, and for her own exclusive benefit, the same as though she were unmarried; and all the earnings and profits belong to her exclusively, and are her sole and sepsrate estate : Foster et al. v. Conger, 61 Barb.
Capacity to sue and be sued.—She may also sue and be sued, upon