
    Isaac Packard versus Henry Lienow.
    The owners of a private vessel of war, valued by them at $ 25,000 dollars, divided the same into twenty-five shares; and, having paid to their agent the said amount, were informed by him that the money was spent, and had proved insufficient to fit out the vessel for sea. They directed him to dispose of additional shares, and get her to sea immediately. Shares could not be sold. He. advanced his own money, and sent her to sea. The owners were held liable to reimburse his expenditures over the $ 1,000 per share.
    The declaration, which was in assumpsit, contained, besides .counts on quantum meruit, quantum valebant, money laid out and expended &c., a count on a special agreement, by which the defendant and sundry other persons severally engaged to apply to the government of the United States for a commission for arming and equipping, as a letter of marque or privateer, the brig Curlew, for the purpose of cruising against and capturing the ships,'&c., of the subjects of Great Britain; and further agreed to value the said brig with her appurtenances, as she then was, at $ 25,000 ; to provide suitable [ * 12 ] guns, seamen, marines, provisions, arms, ammunition, * and such other outfits as should be necessary ; and that the expenses thereof, together with the said estimated value of the vessel and appurtenances, should be borne and paid by the parties to the agreement, according to the number of shares by them respectively subscribed for, reckoning each share at $ 1000, neither more nor less ; and that they would, as soon as might be, enter into such mutual contracts, stipulations, and agreements, touching said equir ment and its objects, as might be thought best by a majority in value, conforming themselves to the conditions on which the government of the United States might grant a commission as aforesaid.
    The action was tried upon the general issue, before the Chief Justice, at the last November term in this county, when the plaintiff proved that he was appointed agent by all concerned in the private armed vessel called the Curlew ; and that, at a meeting of the owners, the defendant being present, he, the plaintiff, stated that the sum of $ 1000 per share was expended, and that the vessel could not go to sea without an additional expense ; and he was thereupon directed to make as many new shares as would defray the additional expenditure, and get the vessel to sea as soon as possible ; which shares were not and could not have been sold. He also proved, that he had necessarily expended so much, as that the whole expense apportioned upon the number of shares actually subscribed was $ 1151.86, instead of $ 1000.
    The defendant insisted, that, by the terms of the association, he was bound to pay only the sum of $1000, and that, having paid that sum, as appeared by the receipts of the plaintiff in the case, no action would lie against him for any additional sum.
    The jury were instructed, that, if they believed that the defendant knew, when the vessel sailed, that shares enough were not subscribed to cover the expense at $1000 for each share, and that he had, nevertheless, consented that the vessel should go to sea, he was liable for such additional sum, * above $1000, as would [* 13] be his proportion of the additional expense ; for which sum and interest the verdict was returned. The defendant thereupon moved for a new trial, on the ground of a misdirection of the judge.
    
      J. T. Austin, for the defendant.
    
      G. Blake, for the plaintiff.
   Dewey, J.,

delivered the opinion of the Court.

The defendant objects to the directions of the judge, because, he says, that, by the terms of the agreement entered into between him and his associates, it was expressly stipulated that no more than $1000 dollars should be paid on each share, and that, having paid that sum, he is not liable to pay any additional expenses ; that the company did not direct the plaintiff to advance more money for them; but to raise it by the sale of additional shares.

Under the original agreement, had nothing more been done by the defendant, he could not be compelled to contribute towards any expenses incurred beyond the amount raised by the subscription. If that sum proved insufficient to accomplish the proposed object, he had a right to say he would be no further answerable for any expenditures that might be made ; and the act of a majority of those concerned could not operate to make him chargeable.

But, when the defendant and the other owners were informed by their agent, the plaintiff, that the money raised on the original shares was wholly expended, and that more was necessary to fit the vessel for a cruise, they directed the plaintiff to make new shares, to raise money upon them, and to get the vessel to sea as soon as possible They did not direct him to detain the vessel until the new shares were sold, and the money realized ; but to get her to sea as soon as possible. In pursuance of these instructions the plaintiff, by advancing his own money, sent the vessel to sea, but was unable to sell any more shares.

We are all satisfied, that the directions given to the jury were perfectly correct; that, if the defendant consented to the sail-[*14] ing of the vessel, knowing at the time that the whole * expense was not covered by the shares then subscribed at $ 1000 on each share, he was liable to the plaintiff for his proportion of the money advanced above the amount of the shares subscribed for. And we think the facts stated in the case sufficient to justify the finding of the jury.

The plaintiff does not appear to have been a party to the original agreement, nor to have had any interest in the vessel; being only the agent of the company. The defendant was present when notice was given to the owners that the money raised on the original shares was expended, and when the plaintiff was directed to get the vessel immediately to sea ; and it might well be presumed by the jury that she sailed with the consent of the defendant, and that he had a full knowledge of the deficiency of the subscriptions to defray the expense.

On these grounds it is just and reasonable that the plaintiff should recover of the defendant his proportion of the money advanced for him ; it having been found to be impracticable to obtain it in the way proposed. Judgment is, therefore, to be entered according to the verdict. 
      
      
        Helme vs. Smith, 7 Bing. 709.
     