
    Benjamin I. H. Trask, Jr., Plaintiff, v. Charles H. Jones, Executor, and Sarah Jones and Phebe J. Hewlett, Executrixes of Walter R. Jones, deceased, Defendants.
    1. Where, in an action to recover freight for carrying property in a certain vessel and on a voyage named, from New York to San Francisco, the defense is, in part, that it was not carried under such a contract as the bill of lading signed by the master expressed; but was carried under a special contract made between the shipper and one R. R. Hunter; and that Hunter was duly authorized by the owners to make such contract; an'admission at the trial that an advertisement (which was produced) was published prior to making such contract, daily in two newspapers (named) at the port where such merchandise was shipped, for a period of six weeks; stating (inter alia) that persons desiring freight should “ apply to R. R. Hunter, 80 Broadway; J. Belknap Smith, 88 Wall street; or to the captain or agent on board at Pier 4 North river,” imports that such advertisement was published by authority of the owners of the vessel; and that each of the persons named in it was authorized to make contracts for the carrying of goods in the vessel on that voyage.,
    
      2. After such evidence of Hunter’s authority to contract had been given, . evidence of a contract between him and a shipper of goods in such vessel for the particular voyage, fixing the rate of freight to be paid, was admissible.
    3. An order drawn by one who has furnished supplies to a vessel indorsed upon one of her bills of lading and drawn upon the master requesting him to pay a sum named, describing it as the freight on the bill of lading, of which the within is a copy, and accepted by the master with the knowledge and assent of the owners of the vessel, is a sufficient equitable assignment of the freight of the goods in such bill of lading mentioned, and entitles the assignees to recover that freight from the shippers of the goods.
    (Before Bosworth, Oh. J., and Hoffman and Moncrief, J. J.)
    Heard, April 14th;
    decided, June 25th, 1859.
    This action was tried before Chief Justice Duer and a jury, on the 1st of June, 1857, and now comes before the Court on questions of law arising at the trial, and there ordered to be heard in the first instance at the General Term. It was originally commenced against Walter R. Jones, who shipped goods from New York to California, to recover for carrying the same, and he having died pending the suit, it was, by order made May 7, 1855, continued against Charles H. Jones, Executor, and Sarah Jones and Phebe J. Hewlett, Executrixes, of his last will and testament.
    The plaintiff brings the action to recover the amount alleged to be due for carrying materials for a storehouse from New York to San Francisco in 1850, in the ship Clarendon. The complaint alleges that the contract for the carrying of the storehouse is contained in a bill of lading signed by the master, Henry S. Brown, and that a copy thereof is annexed to the complaint, and marked exhibit A. The sum claimed is $1,611.75, “ or so much as the carriage of said merchandise as herein set forth is worth.” The complaint also states that the owners of the ship being indebted to Merritt & Trask in the sum of $7,044.77 for stores and ship-chandlery furnished to the ship in the port of New York, Brown, the master, as master and by virtue of his lawful authority and as collateral security for the payment of this debt, and before the sailing of the ship, by his written acceptance of an order drawn upon him by Merritt & Trask, “ assigned the entire freight on said merchandise, as per bill of lading, to said ” Merritt & Trask.
    
      This order of Merritt & Trask was drawn on one of the hills of lading for the merchandise which the master had signed, and is in these words:
    “New York, September 17, 1850.
    “ For value received, please pay sixteen hundred and eleven tVV dollars freight on bill lading, of which the within is a copy to the order of Merritt & Trask.
    (Signed) “ Merritt & Trask.
    “ To Capt. Henry S. Brown,
    “ Ship Clarendon,
    “San Francisco.
    “ Accepted September 17, 1850.
    (Signed) “Henry S. Brown.”
    Before this bill for stores and ship-chandlery furnished by Merritt & Trask was contracted, Raphael Schoyer had agreed with the owners of the vessel to purchase her at $25,000, and pay $8,000 cash in hand and $17,000 on the arrival of the ship at San Francisco. That being paid the voyage was to be his. He paid the $8,000 down, and ordered the stores and ship-chandlery furnished by Merritt & Trask. Brown, the master, was a part owner, and a Mr. Oodman was the other part owner. It was proved that Brown accepted the foregoing order in the presence of Codman and Schoyer.
    These are the acts which are relied on as amounting to an assignment of the claim for freight to Merritt & Trask. They made an assignment of the claim to the present plaintiff.
    By the bill of lading signed by the master, the merchandise was to be carried for 50 cents per cubic foot, with 5 per cent primage and average accustomed.
    The defense is, in part, that the goods were not shipped under such a contract as the alleged bill of lading specifies, and that no such bill of lading was ever delivered to or accepted by the shipper of the goods. But on the contrary, that they were put on board upon an agreement between the shipper and R. R. Hunter, the authorized agent of the ship, by which they were to be carried for “ one-third of the net proceeds of said articles or merchandise after their arrival at San Francisco and their sale there by” John 0. and Henry Hewlitt, the consignees of the cargo.
    
      The Judge, at the trial, held that there was no such contract as the bill of lading signed by the master expressed; and instructed the jury'that there was no express contract for the carriage of the goods proved; and that the plaintiff was entitled to recover the customary rates, less the proceeds which had been realized from a sale of the lumber, it having been sold in San Francisco because the consignees refused to receive it and pay freight at the rate of 50 cents per cubic foot. The defendants excepted to each part of this charge. The jury found a verdict for the plaintiff for $1,851.17, subject to the opinion of the Court at General Term on the questions of law arising at the trial.
    The evidence of Hunter’s authority, as agent, was as follows:
    The plaintiff’s counsel admitted that an advertisement marked schedule “G” was published daily in the New York Journal of Commerce, commencing June 29, 1850, and continuing until September 19,1850; and in the New York Courier and Enquirer from July 17, 1850, till about the same time, and it was read in evidence. It reads thus, viz.:
    “G”
    “ First vessel for San Francisco, the superior, fast-sailing Canton packet ship
    “ CLARENDON,
    “ Henry S. Brown, Commander,
    “will soon be ready for sea. Shippers who have engaged freight will please send it on board without delay, together with their bills of lading. For balance of freight apply to
    “R. R. Hunter, 80 Broadway,
    “ J. Belknap Smith, 88 Wall street, “ or to the captain or agent on board at Pier 4, North river.”
    The defendants also produced a written memorandum proved to be in the handwriting of Hunter, which was read in evidence and marked exhibit “ J,” and is as follows:
    “ House is about 1,600 cubic feet, at fifty cents per cubic
    foot,......................................... $800
    Five per cent primage,............................. 40
    $840
    Bosw—Yol. Y. 9
    
      
      “ Cost of house about $500.
    “ We will take one-half of the gross proceeds of the house. This leaves the arrangement greatly in favor of the shipper ; suppose the house sells for $1,000, in that case the shipper will get the full amount of his cost, and the ship will get but thirty cents per cubic foot.
    
      (Above is a copy of Hunter’s estimate.)
    
    
      “ Say £ the net proceeds.
    “ 13th July, 1850. Agreed to ¿ of net proceeds to be allowed for freight.
    (Signed) “W. R. J.”
    The defendants proved that bills of lading to be signed by the master, for the carriage of the goods, and stating that they were to be carried on the terms alleged in the defendants’ answer, were prepared by Walter R. Jones and sent by him long before the ship sailed, to the office of Schoyer & Hunter, to be signed by the master.
    The declarations of both Schoyer & Hunter, in their conversations with the agent of Jones as to these bills of lading being signed by the master, were excluded and the defendants excepted.
    The defendants offered to prove that Hunter, from time to time, assured Jones and promised him that these bills of lading should be signed by the captain, and that when Jones’ agent called, from time to time, to get the bill with the master’s signature thereto, Hunter sometimes gave the excuse, for the delay in signing them, that the master was out of town, or some like reason, but promised that they should be executed by the captain, and that “ these calls and promises were repeated till after the ship sailed.” This evidence was excluded and the defendants excepted.
    ■ Various other exceptions were taken which it is unnecessary to state, as they were not passed upon by the Court in disposing of the case.
    
      John H. Burrill, for the plaintiff.
    I. There was no evidence to show that Hunter was authorized to make contracts for the ship as owner, or in any way to act for them, but the contrary clearly appears.
    
      II. The property having been shipped by Jones on board the Clarendon, and conveyed to San Francisco, the owners were entitled to recover freight.
    If, as the defendants insisted, Jones had not contracted to pay the rate specified in plaintiff’s bill of lading, and if, as was clear, the ship owners were not bound by the acts of Hunter, it follows that there was no contract as to the rate of freight, and the shipowners became entitled to recover such sum for the carriage of the goods, as it was reasonably and fairly worth, according to the usual and customary rates of freight, at that time. •
    III. The pleadings were sufficient to warrant a recovery on a quantum meruit.
    
    IY. The delivery of the bill of lading, and the instrument thereon indorsed to Merritt & Trask, under the agreement proved by Brown, was sufficient to transfer and convey to them the right' to demand and recover the freight for the carriage of the merchandise.
    1. Brown was the half-owner and the ships-husband, and authorized to finish and procure the necessary supplies for the voyage, and for that purpose to create a lien either upon the vessel or her freight.
    2. Merritt & Trask had furnished ship-chandlery and stores to the vessel for the voyage, and had a lien upon the vessel therefor, and the transfer in question was made to them for the purpose of paying the same.
    3. The consideration for the transfer was not only good and valuable, but was peculiarly beneficial alike to the owner of vessel and cargo; and Merritt & Traslc, having abandoned their lien on the faith of the transfer of the freight, upon every consideration of honesty and justice, are entitled to be protected.
    4. It is evident that the intention of Brown & Codman was to assign the freight for the carriage of these goods to Merritt & Trask; and if the instrument does not amount to a formal and technical assignment, the intention of the parties should be carried out, and the instrument sustained as an equitable assignment of such freight.
    5. The freight was payable on the delivery of the goods at San Francisco ; and the captain, in that character, was the proper person to collect the freight as the agent of the owners.
    
      6. The captain, as such, from the peculiar character of his agency and duties, has the right in his own name to collect the freight and to take all proper and necessary steps for that purpose.
    6. Brown being thus entitled to collect and receive the freight, both as captain and owner, by the instrument on the bill of lading, agrees to collect the freight for the carriage of the goods for Merritt & Trask, and to pay the same over to them or their order, and thus became their agent.
    8. If A, being creditor of B, agrees with C to collect the amount due and pay over the same to C, the latter is the assignee of the debt.
    9. At common law, and prior to the Code, in the case last named, C could not maintain an action in his own name without a promise on the part of the debtor to pay C, the assignee; but, under the Code, the rule is changed, and the action must be brought in the name of the real party in interest.
    10. The assignment to Merritt & Trask of the freight in question was made by Brown, by and with the knowledge and consent of Codman, the other half-owner.
    The plaintiff is entitled to judgment on the verdict.'
    
      Luther R. Marsh, for defendants.
    I. The plaintiff shows no title to the freight, if a claim of freight was established, and has no right to maintain the action.
    1. There being another legal owner, Codman, and also an equitable owner, Schoyer, the master had no legal right to assign. (3 Kent’s Com., 8th ed., 221, et seq., 171; 12 Conn. R., 489.)
    2. The alleged assignment consists in a mere acceptance, by the master, of an order indorsed upon a copy of the bill of lading, drawn to the order of Merritt & Trask, requesting him to pay a specific amount, described as “ freight on bill of lading, of which the within is a copy,” and on its face addressed to the master at San Francisco. It does not purport to be an order upon Mr. Jones, nor any person owing or having funds, and it is a mere bill of exchange and personal promise of Brown, and it lacks every requisite, either of an assignment or an appropriation of funds not collected. (Rogers v. Hosack's Ex'r, 18 Wend., 319, 334; Hoyt v. Story, 3 Barb., 263; Dickenson v. Phillips, 1 Barb., 454, 458; Kelley v. Mayor of Brooklyn, 4 Hill, 263; Hawley v. Ross, 7 Paige, 103; Malcolm v. Scott, 3 Hare 39.)
    3. No action could be maintained against the owners'upon this as their acceptance. The prefix “ Capt.” in the address is merely descriptive, (2 Seld., 168; 10 Wend., 87; 11 How. Pr. R., 11; id., 36,) and it is not added to his signature.
    4. Ho right to collect freight was relinquished on the part of the owners. Ho where is there a pretense of direction or authorization by anybody to Mr. Jones to pay to any one but the owners. There is no privity with Mr. Jones. An agreement by the owners to pay over the amount received for freight, of itself, would imply that it was still to be collected through them, and could constitute no appropriation. (Dickenson v. Phillips, and other cases, supra; Marine and Fire Ins. Bank v. Jauncey, 3 Sand., 264; Winter v. Drury, 1 Seld., 525; 3 Sand., 263; Cowperthwaite v. Sheffield, 1 Sand., 416, 449; 3 Comst., 243, 248, et vide 4 Hill, 263; 3 Comst., 251.)
    5. If the indorsement were even an equitable assignment, which it is not, the action should be brought for equitable relief, and the owners of the vessel made parties, so as to protect the defendants against the legal title, especially when there is a dispute as to the extent and validity of the assignment. (Story Eq. Pl., § 153; Cases supra, and 8 Price, 269; 1 Jac. & W., 506; 5 Maule & Sel., 549.)
    6. Ho freight has been earned, and the right to freight was inchoate and incapable of assignment. (Otis v. Sill, 8 Barb., 102; Bank Lansingburgh v. Orary, 1 Barb., 551; Field v. The Mayor, 2 Seld., 179; Robinson v. Macdonnell, 5 Maule & Sel., 228.)
    7. It is not now sought to recover upon the bill of lading upon which the indorsement was made, and the indorsement could transfer no right of action independent of the bill. (Battle v. Coit.)
    
    8. Brown’s coownership is not good foundation for an authority to assign. He could not divide the cause of action by assigning his interest, nor could he assign his coowner’s interest. (2 Seld., 179; 5 Wheat, 277; Hyde v. Stone, 9 Cow., 230.)
    II. The complaint was upon a written express contract, and it is evident there was an express contract. A recovery upon an implied contract was inadmissible. (Ladue v. Seymour, 24 Wend., 62; Smith v. Smith, 1 Sand., 208.) The defendants came prepared to disprove this express contract, and was unprepared with proof as to a quantum meruit. The objection was repeatedly made on the trial.
    III. Ho ground for recovery upon a-quantum meruit is established. It was never pretended that Mr. Jones engaged freight upon a general agreement.
    IY. A fraud was practised upon Mr. Jones in this matter; the lumber would not have been sent at ordinary rates for other cargo; he made a contract with the advertised agent, without which it could not have been taken; through no other channel or means was any authority obtained for carrying the lumber; bills of lading were left at the advertised office, with this advertised agent, according to the custom of shippers, and this agent took no exception, nor did any one, to the bills agreed upon, but frequently promised that they should be formally signed, and the shipper, Mr. Jones, was not liable upon any other agreement than that made with such agent.
    A new trial should be ordered.
   By the Court—Bos worth, Ch. J. Henry S. Brown,

the master, and a part owner of the Clarendon, testified that Raphael Schoyer had agreed, before the departure of the ship, to purchase her for $25,000, and had paid down, in cash, $8,000, and was to pay the other $17,000 on her arrival at San Francisco. That being paid, the voyage was to have been his own.

The ship-chandlery and stores furnished by Merritt & Trask, to secure the payment of which the claim in question was, or is claimed to have been, assigned, “ were ordered by Raphael Schoyer.” They were, of course, so ordered with the knowledge of Brown & Codman, the owners who had made this contract to sell her.

Codman, Brown and Schoyer were present when the transfer (so called) of the freight in question to Merritt & Trask was made.

It was admitted by the plaintiff that an advertisement was published from the 29th of June to the 19th of September, 1850, in the Journal of Commerce, and from the 17th of July, 1850, till the 19th of September following, in the Courier and Enquirer, to the effect that “ shippers who have engaged freight” (in the Clarendon) “ will please send it on board without delay, together with their bills of lading. For balance of freight apply to R. R. Hunter, 80 Broadway, J. Belknap Smith, 88 Wall street, or to the captain or agent on board, at Pier 4, North River.”

This constitutes sufficient evidence, prima facie, that Hunter was authorized to make contracts for the carrying of cargo, and the freight to be paid therefor.

Exhibit “ J” is proved to have been written by Hunter. That furnishes some evidence that he agreed the house should be carried for one-third of the net proceeds of a sale of it.

If Schoyer had paid the $17,000 on the arrival of the Clarendon at San Francisco, so that the vessel and the voyage would have become his, I think it cannot be doubted that the evidence given and excluded would have established, as between him and Jones, such a contract as exhibit “ J” imports.

Brown & Codman, having received $8,000 of the contract price, which was to be forfeited on a failure to pay the $17,000, according to the contract, that fact, in connection with the other facts proved, furnish strong evidence that they were willing that Schoyer should, as the party deemed most interested in the result, contract for freight and agree upon the rate to be paid, and allowed him to do so, on the idea that the payment of the $8,000, with the freight to be earned, whatever it might be, would save them from loss, in any event, from the results of the voyage.

The admission by the plaintiff that the advertisement, exhibit “Gr,” was published in the newspapers named, and for the periods stated, must be regarded as an admission that it was published with the knowledge and assent of Brown & Oodman as well as of Schoyer, and that they had conferred upon Hunter the authority which it imports.

Exhibit “ Gr” implies that it was expected the shippers of goods would prepare the bills of lading to be signed, and the captain swears that they generally filled them up.

Bills of lading, filled up by Jones, were sent by him, long before the Clarendon sailed, to the office of the advertised agent, with whom he had arranged the rates of freight to be paid. The defendants were not permitted to show, either what Hunter, the advertised agent, or Schoyer, the equitable owner, said in respect thereto.

There is no pretense that Jones had any communication with the master as to the shipping of the goods or the freight to be paid, or that the master or any one in his behalf or on behalf of the legal owners intimated to Jones that the property would not be carried on the terms agreed on by Hunter, although the master was advised by the bills of lading which Jones sent to be signed what he understood or claimed the contract was.

I think that the evidence given as to the authority of Hunter to act for the ship in the making of contracts for carrying merchandise is sufficient, unexplained, to bind the owners, and that /the contract he made must be deemed to be the one on which the goods were shipped by Jones, and on which the owners agreed that they should be carried to San Francisco.

The advertisement, exhibit “ Gr,” holds out Hunter, Smith, and the “ agent on board at Pier 4, North River,” as possessing the same power as “the captain,” in respect to contracting for freight for the carriage of goods on the Clarendon from New York to San Francisco.

This view makes it necessary to grant a new trial.

What the rights of the parties, growing out of the sale of the cargo, may be, assuming the contract for the transportation of the goods to be such as the answer alleges it was, or such as exhibit “ J” imports, cannot be determined upon this appeal. The cause has not been tried on that theory; and if the cpntract shall be proved, on a subsequent trial, to be such as is above suggested, other evidence may be given which will so vary the case from that presented by the present appeal as to render any principles, applicable to the case now made, irrelevant to that which may be finally established.

We are inclined to the opinion, however, that, if it shall be made to appear that anything was earned by the carriage of these goods which the defendants are liable to pay, the present plaintiff is entitled to receive it, if it shall also be made to appear that Merritt & Trask had furnished supplies for the ship while in this port which went to her use, and that the master accepted their order, with the knowledge of Schoyer and Codman, and with the intent to appropriate thereby the freight, to be earned by the carriage of the goods in question, to the payment, pro tanto, of their claim for such supplies.

If such was the transaction, the equities of Merritt & Trask, and of the plaintiff as their assignee, as against Brown, Oodman and Schoyer, are as clear and strong as if exhibit “ A ” had truly expressed the actual contract for the carriage of the goods.

On such a state of facts, we are inclined to think the plaintiff may justly claim that he should not be defeated in his action to recover any freight actually earned, (if any has been earned by carrying the goods,) merely because the contract for carrying them was different in its terms from what Merritt & Trask supposed it was when they received the captain’s acceptance of their order, and on the faith of which they may have forborne to resort at the time to other remedies which would have secured, in whole or in part, the payment of their claim.

But this is a question which, for the reasons already stated, we do not think it expedient to attempt to decide on the case as it is now presented.

There must be a new trial, with costs to abide the event.

Ordered accordingly.  