
    David Low versus John De Wolf.
    A advanced money on the outward cargo of a vessel bound to Hamburg, the cargo, for his security, being shipped in his name, though really belonging to B & C, the owners of the vessel. The cargo was sold at Hamburg by the agents of the owners. The ship sailed for Russia, and there took in a return caigo, which was shipped by D & Co. the agents of B & C, and paid for out of the proceeds of the outward cargo which they had received from Hamburg. D & Co. took from E. the master, bills of lading in which the cargo was to be delivered to order or assigns, and no freight was specified. D Sc Co. indorsed the bills of lading to A and transmitted them to him. But E did not know that they had been so indorsed. During the voyage home the vessel was forced to put into Copenhagen, and seven bundles of hemp were taken out, which, as it could not be restowed, was left by E with merchants there, with orders to have it sold, and the proceeds sent to London to the credit of B, the principal owner. The proceeds were accordingly remitted and received by B, who failed before the ship returned to the United States, but whose failure was not known to the master at the time when he gave these orders. In an action brought by A against E for money had and received to recover the proceeds of the hemp, held, that E, not knowing of A’s interest in the cargo, was justified in directing the proceeds of the hemp to be credited to B ; and that the action could not be maintained.
    This was assumpsit for money had and received, and was submitted to the Court on the following statement of facts.
    The ship Octavia, on the 25th of June, 1825, being then owned three fourths by George De Wolf and one fourth by Daniel N. Morice, as appeared by her register, sailed on a voyage to Hamburg, with a cargo shipped by the plaintiff and consigned by him to Schrceder, Males & Co. The defendant was appointed master of the vessel by George De Wolf and Morice, and received from them a letter of instructions, by which he was directed to proceed to Hamburg and deliver Ins cargo there as per bill of lading, and from thence proceed to St. Petersburg to the address of Steiglitz & Co. The instructions say, “We have directed them to put on board 200 tons hemp, 250 tons of iron &c. and the residue in manufactures ; but if you should find on your arrival that a large quantity of hemp has been shipped for the U. S. and further quantities are coming, say over 6000 tons, you will take a less quantity and more iron and manufactures.” By an agreement made before the sailing of the vessel between the defendant and George De Wolf and Morice, the two latter stipulate, as owners, to give the defendant a certain compensation, and he agrees to proceed with the vessel “ to Hamburg, to land her cargo th61-6 and thence proceed to St. Petersburg, Russia, for a cargo for a port in the United States.”
    The ship proceeded to Hamburg and delivered her cargo to the consignees, and sailed thence to St. Petersburg in ballast At St. Petersburg the defendant advised with Steiglitz & Co. in relation to the purchase of the cargo, and after it was shipped, the defendant signed five bills of lading of the same tenor, dated September 28, 1825, in which Steiglitz & Co. are named as shippers of the cargo, which is to be delivered to “order or to assigns, he or they paying freight for the same goods, with primage and average accustomed.”
    The vessel sailed for the United States, and during her passage through the Baltic suffered so much damage from severe weather that the defendant was obliged to put into Copenhagen to repair, and there land seven bundles of hemp, part of the cargo. The defendant left the hemp in the hands of Rainals P. De Coninck & Co., directing them in writing to sell the hemp and remit the proceeds to some good house in London, subject to the order of George De Wolf. De Coninck & Co. accordingly sold the hemp and remitted the net proceeds to a banker in London, subject, to the order of George De Wolf, who afterwards drew the same out of the hands of the banker. George De Wolf is now wholly insolvent.
    Before the vessel sailed from the United States, George De Wolf had conveyed his interest in her to the plaintiff, but the register was not changed. This transfer was made as security to the plaintiff for advances. And the cargo shipped by her in the name of the plaintiff, belonged to George De Wolf and Morice, but was transferred to the plaintiff as security for advances, as appeared by a written contract signed by Low. But the defendant denied any knowledge of the transfer of the vessel or of the contract.
    At the time the Octavia sailed from the United S*ates, the plaintiff addressed a letter to Steiglitz & Co. as follows ; — “ Boston, June 25, 1825. The ship Octavia sails to-morrow for Hamburg with 6992 bags Manilla sugar and 621 bags coffee to the consignment of our mutual friends Messrs. Schrceder, Males & Co., who are instructed, on arrival of the goods, to make out and forward you immediately a pro forma sale thereof for you to [draw on] them for, which you will please invest in the following articles to be.shipped on board the Octavia on her arrival at your port from Hamburg, viz. 200 tons best clean hemp, and 250 tons new sable iron ; one half of the balance of the ship’s outward cargo you will invest in good second quality sheetings, &c. In case sufficient freight do not offer to fill the ship, please put on board 20 or 30 tons well assorted patent cordage. I wish you to send me two invoices of this shipment, one of which you will please fill up ‘ for my account and risk and consigned to me.’ In the other invoice you will not say for whose account and risk the shipment is made, nor to whom consigned, but leave it blank. The bills of lading to be filled up, consigned to order.”
    The defendant retained one of the bills of lading signed by him, and Steiglitz & Co. transmitted one or more of them to the plaintiff, indorsed by them, “ Deliver to the order of Mr. D. Low.” But the defendant denies that he had any notice or knowledge of this indorsement.
    Steiglitz & Co. handed the defendant a letter to be delivered to George De Wolf, dated August 28, 1825, of which the fol lowing is an extract: — “As to the Octavia, our mutual friend Mr. Low has transmitted us an order for what she is to cony home. The 100 tons of hemp bought for the Anne, we are now shipping to Cronstadt that they may be in readiness for the Octavia; the 100 tons of iron you ordered for the above stated vessel are already at Cronstadt, and as the Octavia is to take 250 tons, all new sable, we shall endeavour to procure the remaining 150 tons. * * * Our proceedings shall be guided according to circumstances, and your interest shall be kept at heart. * * * After the supplies are arrived we shall endeavour to purchase for you, and in the mean time take our choice of the parcels of sheetings that are now in the market. Seeing a tendency in the exchange to rise, we availed ourselves of an opportunity that offered itself on the 25th, to draw upon Messrs. Schrceder, Males & Co. of Hamburg, for your account, &c. for which we credit you,” &c.
    George De Wolf was doing a large business at St. Peters-burg through Steiglitz & Co.
    
      
      June 24th, 1828.
    The defendant having, in his return voyage, peen obliged to put into Liverpool, on the 1st of March, 1826, he addressed a letter to the plaintiff, which commenced as follows ; “ Since my arrival here I have heard a flying report that Mr. George De Wolf has failed, which I fear will prove too true. In this event you, I presume, have become the proprietor of the Octavia’s cargo. I have always made my communications (during this voyage) to Mr. De Wolf, who, I trust, has made you acquainted with the misfortunes which have befallen me from t'me to time since I left St. Petersburg.” The letter then gives a detailed account of the voyage, and of his present situation and prospects, and mentions that he shall be obliged to sell some damaged hemp.
    The plaintiff claimed in this action the .amount of the sales of the hemp sold by De Coninck & Co. together with interest and exchange. The defendant was to be defaulted, or the plaintiff to become nonsuit, according to the opinion of the Court.
    
      Welsh, for the plaintiff.
    The outward cargo belonging to Low and being shipped in his name, the homeward cargo which was purchased with its proceeds equally belonged to him; and the bills of lading being indorsed to him made him the ostensible as well as the real owner of the property. Jacobsen’s Sea Laws, 191; Lickbarrow v. Mason, 5 T. R. 367; Mason v. Lickbarrow, 1 H. Bl. 357; Caldwell v Ball, 1 T. R. 205; Hibbert v. Carter, 1 T. R. 745. It is also evident from the whole transaction, and especially from the defendant’s letter of March 1, 1826, that he was aware of Low’s interest. If it was necessary then to sell the hemp in Copenhagen, it was the defendant’s duty to have the proceeds remitted on account of Low, or to his own order, or to have done nothing until the bill of lading was brought to him.
    
      Shaw and Bartlett, for the defendant.
    The defendant was prevented by perils of the sea from delivering all the cargo pursuant to the bill of lading. It became necessary to leave the hemp at Copenhagen, as it could not be restowed. Saltus v. Ocean Insurance Company, 12 Johns. R. 109. In directing the disposition of the proceeds of the hemp he acted with good faith and sound discretion, which was all that he .was bound to do. The Gratitudine, 3 Rob. Adm. R. 258; Searle v. Scovell, 4 Johns. Ch. R. 218. He did not know of the contracts with Low, and could not have ascertained from the bills of lading that Low had any interest in the cargo. Ogle v. Alkinson, 5 Taunt. 759.
    George de Wolf, to whom the remittance was ordered, was the principal owner, and believed to be a man of property. Steiglitz & Co. considered him as owner of the cargo, and credited him with the proceeds of the outward cargo ; and the bills of lading did not specify any freight, being the usual mode where the owners of the ship are also owners of the cargo. Under these circumstances, the defendant, until he had notice of the indorsement of the bills of lading, had a right to consider tlie cargo as belonging to the ship-owners. It is doubtful whether Low was the legal owner of the return cargo ; for though an indorsement of a bill of lading generally passes the property in goods, it does not in all cases, nor unless it is intended to produce that effect. 2 Holt on Shipping, 72 ; Walley v. Montgomery, 3 East, 590.
    The opinion of the Court was delivered at this term by ..
   Parker C. J.

This action is for money had and received. By it the plaintiff claims the proceeds of seven bundles of hemp sold under the defendant’s order by De Coninck & Co. The amount was remitted by them to a banker in London, subject to the order of George De Wolf, on whose account it has been paid. The hemp was part of a cargo shipped by Steiglitz & Co. at St. Petersburg on board the ship Octavia, owned by George De Wolf and one Morice, but according to the invoices and bills of lading of the outward cargo, that belonged to the plaintiff, and the proceeds were intended to be shipped to him. Steiglitz & Co. took five bills of lading from the defendant, master of the ship, in which no consignee- was mentioned, but the goods were to be delivered to order or assigns ; and one of the bills of lading was indorsed to the plaintiff by Steiglitz & Co. and sent on to him ; but the defendant denies that he knew of this indorsement, and there is no evidence that he did know of it. On her voyage from St. Petersburg the vessel met with disasters and the defendant was obliged, as the case states, to put into Copenhagen. It is not questioned that this act was justifiable, for this action affirms t^e d0‘mgs of the defendant in that particular and claims the proceeds of the hemp as sold at Copenhagen, a sale thereof having been made by the order of the defendant. Whether the defendant has made himself liable by virtue of the bills of lading made and indorsed as before mentioned, or in consequence of his order to remit the proceeds on account of De Wolf, depends upon other facts detailed in the case. - The outward cargo, though shipped ostensibly by the plaintiff, in fact belonged to De Wolf and Morice, who were the owners of the vessel and of the voyage. By the agreement referred to in the case, between them and the plaintiff, it appears that the latter was only colorably the owner for the purpose of security for an advance of money made by him to them. It does not appear that the defendant knew of the existence of this agree ment, but he knew that the ship belonged to De Wolf and Morice, and that they conducted the voyage. His instructions as to the disposition of the outward and the procuring a homeward cargo were given by them, and the plaintiff is not mentioned therein. Nor does it appear that the plaintiff gave him any directions whatever as to the management of the property or in relation to the voyage. All he can be presumed to know is, that the plaintiff was the shipper of the outward cargo ; which he might gather from the invoice and bills of lading; but he had a right, under the circumstances, to suppose that the purpose intended by this was answered by the delivery of the outward cargo ; and recurring to his instructions, he would see that the provision for the return cargo was made by De Wolf and Morice and not by the plaintiff. The bills of lading too, which Steiglitz & Co. caused him to sign, furnished no indication to whom the cargo was consigned, and for aught he knew, the consignees would be De Wolf and Morice. At any rate, they stood to him as the conductors of the voyage, and this gave him a right to presume that they were in fact owners of the cargo, or at least that they had such a control over it as to justify him in treating the portion of it sold in Copenhagen as theirs.

Under these circumstances we think the defendant could not be made liable to the plaintiff without notice to him of the plaintiff’s interest in the cargo, or proof of knowledge on his part of the failure of De Wolf before he ordered the remittance from Copenhagen to him; but it cannot be inferred from any facts in the case that he had such knowledge. Admitting the property in the cargo to have been legally the plaintiff’s, yet we think he gave, by the mode of conducting the transaction, such an agency and control to George De Wolf as justified the defendant in dealing with him as owner. The bill of lading indorsed to the plaintiff without doubt vested the legal interest in him, but he had suffered the order and disposition and apparent ownership to remain in the owners of the vessel and the framers of the voyage, and it would be unjust to allow him to claim now of the defendant a sum of money, which by seasonable information of the state of things between him and George De Wolf might have been kept from George De Wolf’s hands.

These bills of lading, though prima facie evidence of abso lute property in him to whom they are indorsed bona fide and for a valuable consideration, are nevertheless capable of being explained ; as in the case of Hibbert et al. v. Carter, 1 T. R. 745, where it was held, that though the indorsement and delivery of a bill of lading to a creditor prima facie conveys the whole property in the goods from the time of its delivery, yet j'f the intention of the parties appears to have been only to bind the net proceeds in case of the arrival of the goods, the property of the goods is for the purpose of insurance considered to remain in the indorser. The intention here was only to bind the net proceeds, to secure the advance made by the plaintiff, and the defendant was kept ignorant that the plaintiff had any interest in the cargo. We think under these circumstances he is not liable for the proceeds of the part of the cargo necessarily taken out and sold; and therefore the plaintiff has not supported his action. 
      
       See Long on Sales, (Rand’s edit.) 202 et seq.; Mien v. Williams, 12 Pick, 300; Abbott cn Shipping, (Sto'y’s edit. 1829,) 387 et seq.
      
     