
    Isaac E. Judson against Thomas Sturges :
    IN ERROR.
    
      A., as the agent of B, both being citizens of the United Suites, undertook; to transport certain properivfiom St. ¡Stephens, m the province ofJ\'ova-Scotia, to Antigua, one of the British IVesi-India islands, in an English bottom, (the Sarah,) chartered tor that voyage only, in the name of a British subject. The vessel and cargo arrived in safety at Antigua, but the laws then in force in that island prohibited the landing of the cargo ; and the master of the Sarah refusing to cany the property further, A. purchased another vessel with a view to transport the property to the island of Gtuulalovpe. which was then subject to the French government. At <liis time, England and France were at war. Outlie passage 1o Guadeloupe, the vessel and cargo were captured and carried into Dominico ¡ and A. paid a large sum of money for the ransom thereof. received discretionary authority from li., to sell and dispose of the property, as he should judge best for the interest of B.¡ but he was not expressly authorised to purchase a vessel. In an action of account, bi-ought by B. against A. for the avails oi the property by him sold, the defendant, in his account, charged die plaintiff, among other items, with the money paid on the purchase of the vessel. It was held, that although the defendant had lio express authority to purchase a vessel, yet, considering the discretionary-power which he possessed, the nature of his agency, and the circumstances in which lie was placed, the purchase was justifiable.
    THIS was an action of account, brought against the defendant for certain goods, wanes and merchandize, delivered by the plaintiff to the defendant, at St. Stephens, in the province of Nova-Scolia, and by him received, and sold in the West-hulks, as the agent of the plaintiff.
    The cause was tried before the Superior Tour! : And nu ditors having been appointed, they awarded a balance of 1C3 dollars, 5 cents, in favour of the defendant.
    The plaintiff made a remonstrance against the acceptance of the auditors’ report, wherein it was averred, that it was proved and admitted, on the trial before the auditors, that the plaintiff delivered the property described in the declaration to the defendant, at St. Stephens, in the province of Nova-Scotia, within the dominions of the king cf (timt-thku-u and that the same was shipped, by the defendant, in an English vessel, chartered for that voyage only, in the name of Eliada Prescott-of'St Stephens, a subject of the king of Great-Britain, to the island of Antigua, one of the British Wcsi-India islands, to sell and dispose of for the benefit of the plaintiff, and to account wilh him for the avails thereof: And that it was admitted, that the defendant arrived with the property, in safety, at the place of destination.
    And it was averred, that the defendant, in his account exhibited before the auditors, had charged the plaintiff with the sum of 331 dollars, 93 rents, as the proportion of the ransom paid for the restoration of the plaintiff’s goods, and the schooner Liberty, «hipped at Antigua, on hoard the schooner, which was captured and carried info Dominico: Also, tile Sinn of 332 dollars, JO cents, paid Capí, Ayrc, foi freight amt demurrage on the plaintiff’s goods shipped by the schooner Sarah from SI. Sltpknis : Also, flu; sum of 1 13 dollars, 29 cauls, paid ¡¡dozen anil .hr,I'm, being two third? •of the profits on the plaintiff’s goods sold at Guadatmipe, as per contract made at Antigua : Also, 1035 dollars, 68 cents, as his proportion of lu3s on the capture, on the passage from Guadaloupe to Antigua, being the proceeds of goods sold in Guadaloupe : Also, 334 dollars, 8 cents, as his proportion of the purchase money of the schooner Liberty, purchased at Antigua.
    It was also averred, that the defendant, in support of his account, offered evidence to prove, that when he received the property mentioned in the declaration, at Si. Stephens, the plaintiff gave him discretionary authority to sell and dispose of the same, as he should judge best for his interest; that on his arrival at Antigua, he found, that the laws then in force in that island, prohibited the landing of the property, and that he, therefore, purchased the schooner Liberty, with a view to transport the plaintiff’s property, together with other property which he received at St. Stephens, belonging to sundry' mercantile houses in Connecticut, to the island of Guadaloupe, which was then subject to the French government, between which, and the government of Great-Britain, there then was, and for a long time before, had been, a state of open war; that on the passage to Guadaloupe, his vessel and cargo were captured, and that he was obliged to ransom the same, at the price of 1000 dollars ; that he proceeded to Guadaloupe, where he sold the property ; and (hat, on his return to Antigua, lie was robbed of all the money and other property, the avails of the same.
    It was admitted, that the defendant had no express authority to purchase a vessel, as above stated.
    
      The plaintiff, before the auditors, objected to the admission of the evidence offeied by the defendant, and to ¡he allowance of his account, and particularly, to the charges relating to the purchase of the schooner Liberty, the money paid for the .ransom of the vessel and cargo, and me loss by robbery, on the ground that the defendant had no right, pursuant to his instructions, to pus chase a vessel, for ibe purpose of engaging in a new voyage, or to transport the proper!.» to any other place than that originally designed ; and also, on the ground that he had no right to hazard property in a voyage from Antigua to Gmdalovpc, as the English a.id French were then at war : But the auditors overruled these objections, admitted the evidence, and allowed the defendant’s account.
    The defendant replied to the remonstrance, by denying the truth of the facts therein alleged; upon which issue was joined to the court; who found the following facts, viz. That the plaintiff’s property was shipped in an English bottom, in the name of an English woman, from Si. Stephens, to Anti gua ; Shat the vessel on board of which it was shipped, was chartered for that voyage only ; that the master of the vessel, who carried the property to Antigua, refused to transport it to any other place ; that by the laws then in force at Antigua, the property could not be there landed, and that a transportation thereof, elsewhere, became necessary ; that under these circumstances, the defendant took advice as to the course, which he ought to pursue, and in pursuance thereof, purchased the schooner Liberty, at Antigua, in order to carry the property to a market, for which he paid about 500 dollars, and that he afterwards sold the vessel for the same sum ; that the defendant had discretionary, but no express authority to purchase a vessel; that on bis passage to Guadalmipe, he was captured and carried into Dominico. where he ransomed the vessel and cargo, proceeded to Gua-dalmipc, and there sold the plaintiff’s property ; that the defendant, in his account, charged the plaintiff with his due proportion of the loss sustained by the capture and ransom of the vessel and cargo; and also charged the owners of the property with the amount paid for the price of the vessels, and credited them with the avails of the sale thereof; that all these charges wee allowed hy the auditors: and that it was decided hy the auditors, that the plaintiff was liable for his proportion of the losses sustained hy the last voyage.
    These facts having been found to he true, the court adjudged them to be insufficient to set aside the report of auditors ; and the report having been accepted, judgment was rendered thereon, accordingly. To reverse this judgment; the present writ of error was brought.
    
      N. Smith and B, Bronson, for the plaintiff in error. They contended,
    1. That the finding of the court is defective. Smith v. Bellamy, 1 Boot's Rep, 200. Oates v. Nobles, 1 Root’s Rep. 344. Cook v. Atwater, 1 Root’s Rep. 435. Woodworth v. Clark, 1 Root’s Rep. 342.
    
    2. That the defendant exceeded his authority. Johnson v. Shippcn, 2 Ld. Raym. 983, 984. Abbott, 4. 8. in notis. R< id v. Darby, 10 East, 143.
    
      Daggett, contra.
   Brajnard, J.

The principal ground of error relied upon in this case, is, that the court, after finding certain facts alleged in the remonstrance, to be true, adjudged them to be insufficient to set aside the report of the auditors. The objection relates, chiefly, to the fact that the defendant purchased a vessel at Antigua, for the purpose of transporting the plaintiff’s property from thence to Guadaloupe, a proportion of the price of which purchase, was charged in his account against the plaintiff, and allowed by the auditors. This act, it is claimed, was beyond the scope of the defendant's authority ; no express authority having been given to him, for this purpose.

The court find, that, by law, the property could not be landed at Antigua, and that a transportation to some other place, became necessary ; that the vessel in which it was sent, was.chartered for that voyage only, and that the cap. tain refused to carry it to any other place ; that the defendant took advice, and in pursuance of such advice, as freights were very high, concluded to purchase the schooner liberty, to carry the property to a market ; and they infer, that although the defendant had no express authority, yet he had discretionary orders for that purpose, resulting from the nature of his agency, and the peculiar circumstances in which he was placed : And on this point, the rea! question, is, was this inference correct ?

It is a general and undeniable position, that an agent must act within the scope of his authority ; but in many instances, this scope will be extended, or varied, according to circumstances. To say, that a master, or super-cargo, could purchase a vessel, abroad, when he pleased, and bind the owners thereby, is what no man will pretend : And to say, that lie never can do this, in any instance, and in any emergency, would be equally absurd.

It is a settled principle of law, that the master of a vessel, as agent for the owners, can bind them for necessary supplies furnished the vessel. The supplies must, indeed, be necessary.

Suppose the master of a vessel bound to Batavia, loses his vessel at the cape of Good-Hope, but saves his cargo; and that another vessel cannot be taken up on freight or charter; may he not, under such circumstances, make a contract for the purchase of a vessel, which shall be binding on the owners ? When an agent is sent to a particular place with property to dispose of, and the means of conveyance is lost or destroyed, before his arrival at the place ,of destination, I know of no other course for him to pursue, but to hire or purchase other means, and to proceed. If the right of an agent to hire, or purchase, depend upon circumstances, the principle may as well be extended to the purchase of a. vessel as of a wagon.

In the present case, the defendant had the charge of the property ; it became necessary that he should convey it to a place different from the place of its original destination ; the vessel in which it was shipped, wholly failed him; it became necessary that he should either, freight, charter or purchase another. Í cannot say, that he acted without the scope of his authority, in making the purchase.

I think, therefore, that in the judgment complained of, there is nothing erroneous.

The other Judges, severally, concurred in this opinion, except Smith, J., who being related, by affinity, to one of the parties, did not judge.

Judgment affirmed.  