
    Lysander N. Paine & another vs. Joseph S. Silva.
    Suffolk.
    March 23, 1897. —
    May 21, 1897.
    Present: Field, C. J., Allen, Holmes, Knowlton, & Barker, JJ.
    
      Contract — Equity—Co-owners of Fishing Vessel.
    
    In an action of contract against one of two owners of a vessel to recover for necessary supplies furnished for a fishing voyage, it appeared that as to a portion of the account the defendant personally ordered the articles and directed them to he charged to the vessel; that the rest seemed to have been furnished upon the Blaster's orders, at the request of the defendant or of an agent of the two owners, and that the owners remained in control of the vessel, which was sailed on a certain lay, by which the master received a commission from the proceeds of the fish caught, and then, subject to certain other deductions, the proceeds were divided between owners and crew in a fixed proportion. Held, that the action could be maintained.
    Contract, against one of two owners of the schooner Gertie Winsor, to recover for necessary supplies, mainly rigging and fishing gear, furnished for a fishing voyage. Trial in the Superior Court, before IAlley, J., who directed a verdict for the defendant ; and the plaintiffs alleged exceptions, the nature of which appears in the opinion.
    
      E. P. Carver, for the plaintiffs.
    
      W. A. Morse cf W. W. Stover, for the defendant, submitted the case on a brief.
   Holmes, J.

The defendant was one of two owners, but the non-joinder of the other is not pleaded in abatement, and is not relied on. Wilson v. Nevers, 20 Pick. 20. Edler v. Thompson, 13 Gray, 91. It is suggested that the suit ought to be brought in equity, but of course the rule laid down in cases like Smith v. Butler, 164 Mass. 37, as to proceedings between part owners, has no application to a suit by a stranger to the vessel upon an independent contract.

The only question open to argument is whether the defendant was a party to the contract. As to a portion of the account, the defendant personally ordered the articles, and directed them to be charged to the vessel. The rest seems to have been furnished upon the master’s orders, at the request of the defendant, or of an agent of the two owners. It would be going a great way to say that such a request coming from the general owners did not purport to invite a contract with them personally, even if the vessel were let to other persons as owners pro Jiao vice, as in Baker v. Huckins, 5 Gray, 596, and Rich v. Jordan, 164 Mass. 127, at least for the necessary rigging of the vessel. See Whitcomb v. Emerson, 50 Fed. Rep. 128; Swift v. Hall, 121 Mass. 278. But in the case at bar there was no such letting. The general owners remained in control of the vessel. There is nothing to qualify that conclusion in the fact that the vessel was sailed on what is called the Provincetown lay, by which the master receives a commission from the proceeds of the fish caught, and then, subject to certain other deductions, the proceeds are divided between owners and crew in a fixed proportion. Noyes v. Staples, 61 Maine, 422. The case therefore stands on ordinary grounds of contract, the evidence of the requests made by and on behalf of the defendant, and also of the defendant’s admissions, warranting the inference that he and his co-owner purported to make themselves primarily liable.

Exceptions sustained.  