
    Robbins M. Witherbee, App'lt, v. Charles R. Paris, Adm'r, Resp't.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 15, 1893.)
    
    Vessels—Liability of owner fob advances made to master.
    While the master of a vessel is the agent of the owner, and as such can bind the owner for necessary supplies furnished to enable the vessel to proceed on its voyage, where he does not contract as agent, but obtains repairs orsupplies under a special contract on his own credit or theeredit of some other person than the owner, the latter is not bound.
    Appeal from judgment dismissing the complaint, entered upon the report of a referee.
    The action is for money paid, the complaint alleging that the defendant, as administrator of the personal estate of Augustus Hale, deceased, was engaged in running a canal boat belonging to said estate, and while transporting a cargo of ice through the Champlain canal, at the request of the master of said boat, and to enable him to proceed upon his voyage and deliver his cargo, the plaintiff advanced to said master, upon the usual terms, $100.
    According to the findings of the referee and the uncontroverted ■evidence in the case, it appears that upon the death of said Augustus Hale, the canal boat in question, the “ Henry Hoyle,” constituted a part of his estate, and was in the custody oí Joseph Hale, as master; that said Hale was then engaged in running said boat, and thereafter continued to run her and earn freight with the knowledge and consent of the defendant. The defendant allowed said Hale to continue as master and run said boat, because freights were high and the boat could earn more than its expenses ; that said Joseph Hale, as master of said boat, loaded her with a cargo of ice in August, 1890, at St. John’s, and undertook to carry the same to the city of Hew York, that is to say, Joseph Hale, the master of this vessel in charge thereof as master, agreed to carry and deliver a cargo of ice on said boat, in ■consideration of the freight thereon, the amount of which is immaterial and does not appear. This agreement, made by said master as a common carrier, was made with one William Guindon, the surviving partner of the firm of Hale & Guindon, owners of the ice. When the boat arrived at Whitehall, en route, the master was without funds to pay the expenses of said voyage, and applied to the plaintiff, who advanced to him $100, less the usual commissions in such cases, for the purpose of enabling him to pay said expenses, and said advances were used and expended by the master for that purpose.
    The referee has found that Joseph Hale, the master of said vessel, received said moneys, and the same were advanced to him by plaintiff, as the agent of Guindon, the shipper of the ice, and not as agent of the vessel or Us owner, and this is the material question in the case.
    
      Potter & Lillie (J. Sanford Potter, of counsel), for app’lt;
    
      D. J. Sullivan, for resp’t.
   Putnam, J.

The position of the appellant, that the master of a vessel is the agent of its owner, and, as such, can bind the owner for necessary supplies furnished to enable the vessel to proceed on its voyage, is, I think, correct. Thomas v. Osborn, 19 How., U. S., 22; Macy v. Wheeler, 30 N. Y., 240.

Therefore, ordinarily, plaintiff could recover from defendant, as the owner of the canal boat in question, the $100 he furnished to Joseph Hale, its captain, said sum being advanced to pay necessary expenses to enable the boat to continue its voyage to Mew York.

But the authority of a captain of a vessel to bind its owner for repairs and necessary expenses of the voyage is based on his actual or presumptive agency. If, in fact, he does not contract as agent, but obtains repairs or supplies under a special contract, on his own credit, or on the credit of some person other than the owner, the latter is not bound. The doctrine applicable in such a case is well stated in James v. Bixby et al., 11 Mass., 39, as follows: “ Where labor is performed'upon a ship or any other chattel, the presumption would naturally and legally be that it was done, not only for the benefit, but at the request of the owner ; and an implied promise to pay would arise, which, in law, would charge the owner for a reasonable compensation for the work and labor performed.

“But the implication of law may be avoided by showing that there was an express contract for the work and the compensation, or that the work was done upon the credit of another person, without any intention of resorting to the owners.” See Warner v. Miller, 13 Hun, 654.

In this case the referee found that the $100, to recover which this action was brought, was loaned to William Guindon; that Joseph Hale, the master of the boat, received it as his agent, and that said money was not advanced to or for the use of defendant.

If this finding is sustained by the evidence it is a defense to the action within the authorities above cited. I think the evidence clearly sustains the conclusions of the referee. Tim plaintiff charged the $100 to Guindon, presented a claim to him for it, and testified that he had loaned Guindon money before. _ Hale, the master, testified that he obtained the money in Guindon’s name.

Stockwell, plaintiff’s clerk, testified that arrangements had been made with Guinden to advance the money. In fact, it is difficult to see how the referee could have reached any other conclusion than he did.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.  