
    
      Sims against Willing and others.
    i)y or„ to take dian corn on freight from Philadelphia Partcf°he flour belonged at|g^¿dtheremamder to each párate funds, a¡fpamelnsurance on his own interest in the flour. The whole of the shipment was consigned to C. in Lisbon, and the whole appeared as his property, for the purpose of protecting it from British cruisers. Had the vessel arrived at Lisbon, the whole of the flour was to have been sold by the consignee, and the nett proceeds of Jl’s interest remitted, on his account, to Ills correspondent in London. Held, That and C. were partners, and individually liable for the whole amount of a general average due upon the flour. .
    Interest, upon the amount of a contribution for general average, runs from the time ffte money was advanced upon which the average arose.
    THE plaintiff, Joseph Sims, brought this action against T. M. Willing, surviving partner of the late firm of Francis, F. T. Sampayo, and H. T. Sampayo, to cover contribution to a general average on the cargo of ship Rebecca Sims, captured in October, 1812, by the British • ,r „ , . , . ’ . J , ship Southampton, and carried into Jamaica. As to the Messrs. Sampayo, the Sheriff returned Nihil habent.
    
    The case was tried before his honour, Judge Duncan, Nisi Prius, when a verdict was returned for the plaintiff for 3980 dollars 26 cents, subject to the opinion of the Court the evidence; from which it appeared, that in August, Messrs. Willing & Francis, by order of F. T. Sampayo, chartered of the plaintiff the ship Rebecca Sims, to take cargo of flour and Indian corn on freight from Philadelphia t0 Lisbon. The cargo consisted, of 3167.J barrels of flour, and 6304§ bushels of corn ; and by the bill of lading dated the 4th of September, 1812, appeared to have heen shipped Willing £t? Francis, acting fór F. T. Sampayo; on account and risk of H. T. Sampayo of Lisbon, to whom it was consigned'; the whole cargo appearing as the property of the consignee, for the purpose of protecting it from capture by the British. It was however owned as follows: One half of the flour; viz. 1583§ barrels, and all the Indian corn belonged to H. T. Sampayo ; 500 barrels of the flour to F. T. Sampayo ; and the remainder, viz. 1084 barrels to Willing Ü? Francis. F. T. Sampayo paid for his own and his brother’s shares by bills of exchange on London, and Willing Francis paid for theirs out of their own funds. On the arrival of the ship at Lisbon, the whole of the flour was to have been sold by F. T. Sampayo, who was ordered to remit the nett proceeds of the interest of Willing Francis to London, on their account. The interest of Willing &? Francis was separately insured, — 5000 dollars with the North American Insurance Company, and 5000 dollars with the Marine Insurance Company, leaving 654 dollars 54 cents uninsured. Each company paid an average loss of 636 dollars 35 cents. Willing Francis admitted their liability to the plaintiff for the average loss upon their own interest in the cargo, according to a statement presented to them, of 1390 dollars 81 cents, less their proportion of the average charges, taken from the sales of the cargo at Jamaica, ambunting to 450 dollars 98 cents, leaving a balance, admitted to be due, of 939 dollars 83 cents. An adjustment of the average was made on the 15th'of December, 1815, but all the money upon which it arose, had been paid by the plaintiff on or before the 17th of June, 1813. No demand, however, appeared to have been made on Mr. Willing, for contribution, until the 6th of February, 1816.
    
      Binney, for the plaintiff.
    It is not denied that all the flour on board the Rebecca Sims was subject to general average, and the question is, whether Messrs. Willing Francis were partners with Messrs. Sampayo in the whole, or each was owner of a separate part. It is a clear case of limited partftership. The purchase was joint, though different persons were interested in different proportions, and the whole was to be jointly sold, on the arrival of the vessel at Lisbon. . There was no sepa-rate identification of the property; no distinguishing mark upon the barrels; and neither was entitled to any- separate parcel. The charges attending the passage to Lisbon and the entrance there must have been joint; and loss or damages at sea would have affected the whole concern. It is now settled by a variety of decisions, that a joint purchase, with a view to a joint sale, constitutes a partnership, though a joint purchase, with a view to a separate sale, does not.. So where the purchase is separate, but the interests of the purchasers are mingled with a view to a joint sale, from the time of their commixture they become objects of partnership. Community of profit and loss mdkes a partnership. Where each has paid for his share and brought it into the common mass, a partnership exists from that time. Watson on Part. 7.65. Coope v. Eyre, 1 H. Bl. 48. Saville v. Robertson, 4 D. & E. 720. A debt incurred for ransom or salvage would be joint. If half were lost, it would fall upon all; and if part, were sold to a loss or gain, all would participate in the event. General average is a debt due by the property ánd its owner, for a service rendered to it; and an action at law may be maintained against one whose goods are liable to contribution. Birkley v. Presgrave, 1 East. 220. Dobson v. Wilson, 3 Camp. 480, The liability for average flows from the ownership ; if that be mixed, the' liability cannot be separate. The motives which led to the arrangement of these parties cannot affect its legal character, nor' can the separate insurance which was effected. .Limited partners frequently insure separately. If Mr. Willing had been sued alone, he might have pleaded in abatement.
    But the establishment of a partnership is not essential to the plaintiff’s right of recovery. It exists even if the property was held in common. A necessary contract, whether express or implied, in relation to property held in common, binds all the owners. Thus, a contract made by one of several part owners of a ship for repairs, binds all. The power of tehants in common, to bind each other by their contracts, is not so extensive'as.that of partner's, the former being limited to cases of necessity ; but if the contract be a justifiable one, there is no difference in the consequences flow;ng from For entire injuries to tenants in common, all must sue, and why should they not be all liable for entire benefits, — such as a general average ? General average is a obligation flowing from the ownership of the property, and therefore giving a remedy against all interested. The benefit is conferred upon undivided property. A lien exists upon the whole until all is paid, and the personal liability is co-extensive with the lien. 1 Holt, 367. 370. 372. 2 Bl. Rep. 1077. 1 Sound. 191. (c. note.)
    The plaintiff claims interest from the 17th of June, 1813, when he advanced his money. It is a general rule, that where money is paid by one for the use of another, on his express or implied request, interest is due from the time of payment. The money advanced by the plaintiff was for the benefit of the defendant, and therefore he ought to pay interest from the time it was advanced. The circumstance of the average not having been adjusted until some time after-wards, cannot affect this right, because the statement of a general average is merely to shew what proportion each is to pay, and may be made by the jury at the trial. Insurance companies, by a special clause in their policies, cannot be called on for payment until thirty days after adjustment; but the obligations of individuals, arising not from the adjustment, but from the payment for their benefit, must be governed by the general rule. Dilworth v. Sinderling, 1 Binn. 488. Crawford v. Willing, 4 Dall. 286.
    
      Rawle, for the defendant,
    denied the existence of a partnership between Messrs. Sampayo, and Willing Si Francis, in the shipment in question. In mercantile operations, he argued, regard must be’ had to the intentions and views of the parties in entering into an arrangement. The shipment was made to FI. T. Sampayo alone, for the purpose of protection ; but the purchase shews that there was no joint contract, each having separately advanced his own funds for his own interest. Whatever might have been the fate of the cargo in Lisbon, Willing Si Francis could not have been benefited or injured, beyond the extent of their own interest. If Sampayo had sold his own barrels of flour for a higher price than Willing Si Francis obtained for theirs, the advantage would have been all his own ; and if either party had sold to an insolvent person, the other could not have been called upon to bear part of the loss. Thus, although there was a joint possession, there was no joint interest which could make one responsible for the other. Snmpayo was the agent of Willing &? Francis in Lisbon, and they were his agents in Philadelphia. He might have sold the flour of Willing & Francis, because that was within the scope of his agency ; but they might have followed their own barrels any where, except into the hands of those to whom he had legitimately sold them. If he had pledged them, they might have reclaimed them, and it would have been no answer, that they were not distinguished by marks. If Willing fe? Francis had insured by a good insurance, and the underwriters on Snmpayo’s interest had failed, the latter could not avail himself of the insurance made by the former. To constitute a partnership, the interest must be indivisible. The mixture of property does not prevent a separate interest. There must not only be a joint purchase, but it must be made with a view to a joint sale, to give rise to the relation of partners. Here there was not even a joint purchase, because each paid for his own share with his separate funds, and the arrangement did not contemplate a sale of the whole on joint account. If the cargo had arrived and Sampayo had sold the whole, he would have sold his own share as owner, and that of Willing & Francis as agent. Whitehouse v. Frost, 12 East. 618. Jackson v. Anderson, 4 Taunt. 24. Holmes v. United Insurance Company, 2 Johns. Cas. 329.
    If they were not partners originally, an action will not lie against them as such, although the whole property on which the average fell was held in common. Saville v. Robertson, 4 D. & E. 720. On the principle contended for on the opposite side, every owner of any part of a cargo subject to average, would be liable for the whole amount of average, which would be certainly an extravagant position. Nothing can be more clear than that each is answerable for freight and average on his own goods only. Birkley v. Presgrave, 1 East. 220. The liability of part owners of a ship on the contracts of each other, which has been adverted to, extends only to the case of necessaries, where there was no contract with the ship’s husband. Underwriters, who upon a cession become part owners of property held in common, are not responsible as partners, but each is liable only for his proportion of the expenses in the ratio which the sum insured by him, bears to the whole amount insured. 1 Holt. Ship. 368. Abbot. 120.
    Where interest is not of course, it cannot be claimed if the defendant offers what is due. Delaware Insurance Company v. Delaunie, 3 Binn. 295. Willing Francis were guilty of no injurious delay, they received no money from the plaintiff, and had none of his property in their hands. They were therefore not in default until a specific demand, which was not made till February 6th, 1816. This, therefore, is the period from which the interest is to be calculated. At all events, it cannot run back beyond the time at which the average was adjusted, for until then the plaintiff had no specific demand, and the defendant could not ascertain wha.t he was to pay.
   The opinion of the Court was delivered by

Gibson J.

The case submitted, is neither so full nor so satisfactory as-could be desired, but still enough appears to w rrant a legal inference that a partnership existed between Willing Francis, and the Sampayos. It is of no-consequence whether the flour was purchased on joint account or not, as a partnership may be formed by each contributing in specie, his portion of the article or thing in which the trade is to be carried on. A more material consideration is, that the whole was to be managed and sold on joint account, all equally participating in the profit or loss. The entire adventure was to have been sold on its arrival at Lisbon, by H. T. Sampayo, the consignee. As far as we can discover, the agreement entered into by Willing & Francis with F. T. Sampayo for himself and brother, went that far and no farther. Accordingly, there was an entire commixture of the interests of all; no part of the flour being the separate property of either, but the whole constituting one mass, without distinction as to brand or number. What would have been H. T. Sampayo’s power over the cargo if it had arrived at Lisbon ? The counsel for the defendant says, he was authorised to sell the part of Willing ci Francis, as their agent, and remit the proceeds to their correspondent in London. Every partner may be said to be an agent of the firm while he acts within the scope of the partnership. But could Mr. Sampayo have sold the number of barrels which constituted the share of Willing Francis, either separately, or as an undivided interest ; or was he not bound to sell his own share and that of his brother, at the same time ? By the terms of the agreement he was to dispose of the whole together. This, in the event of the arrival of the cargo at its place of destination, would have been extremely important to Willing Francis, as it would have secured to them the utmost degree of faithfulness in the management of their interest, by connecting it with that of the Sampayos ; but, in return, it subjected them to all the responsibilities of partners. It is of no consequence that the flour was separately paid for with the respective funds of each: that was nothing more than a particular mode of contributing to the joint stock, and cannot affect their liability to third persons : nor is it of any importance that Willing & Francis insured their part separately. In case of abandonment for a total loss, the underwriters could have claimed nothing more than their share, after a settlement of the partnership account; and this circumstance cannot change the nature of the agreement between the partners themselves. Then the partnership being established, the liability .of the defendant, as the surviving partner of the firm of Willing Francis, results' of course.

This decision of the principal question, renders it unnecessary to consider the point made by the plaintiff’s counsel, as to a supposed liability of the defendant as a joint owner, in case the Court should think the partnership not established.

Then as to the last question : We are clear that interest ought to be charged from the time the advances were actually made by Mr. Sims. This action to compel contribution to what was a general charge, is in the nature of a bill in equity, and the money may be said to have been paid and advanced to the defendants use ; in which case interest, in the shape of damages, would clearly be recoverable from the time of the advancement. It is said, that interest follows the debt, as a shadow does the substance ; and although this is not a rule of universal application, I can discover no ground to make this case an exception. In actions for money had and received, or money lent and advanced, interest js 0f COurse . and j cannot see why it should not be demandable in every case where one man has used, or been benefited by the application of the money of another. It wou^ be inequitable to allow interest only from the time when the principal was demanded, in a transaction like this, happening in a foreign Country, where it is long before the plaintiff can be advised of his having a claim, and longer still before he can know exactly what he is entitled to demand. Neither can I discern any shew of reason for referring the calculation to the period when the average was adjusted. The adjustment forms no part of the plaintiff’s title, and ' cannot affect the rights of any one. The plaintiff is entitled to interest from the time the average was actually paid.

Judgment for the plaintiff.  