
    Decker and Brown, Respondents, v. Furniss, impleaded Appellant.
    In an action to recover for materials furnished and labor done in the repair of a vessel, in the absence of any proof of an express contract, those who were, at the time, in possession of the vessel, acting as owners, and directing as to the repairs, are primd facie owners, and liable as such.
    
      This presumption will not be overcome by proof that one of the two defendants, thus acting and directing, was sole owner before the repairing was commenced, and that before that time, he, by written contract between the two, “sells” one half of the vessel, “ as she is now completely fitted for sea,” to the other for a fixed sum to be paid in his notes, payable in fifteen months, to be dated of the time said vessel is out of the carpenter’s hands—fit and ready for sen; the contract also providing that the vendor of the half part should fit her for an ocean steamer at a cost of not over $10,000, one half of which cost the vendee was also to pay in notes to bear the same date as those to be given for the contract pi-ice of half of the vessel, as she was, when sold. Whether by the true construction of such a contract, as between the parties to it, title to the one half vested in the purchaser, from the time the contract was executed, or whether the sale was conditional and the conversion of her into an ocean steamer at an additional cost to the purchaser of not over $5000, was a condition precedent, the performance of which was essential to the vesting of title to the half bought, and fixing the purchaser’s liability to pay the contract price, is immaterial, as to third persons, who furnish materials and expend labor upon the vessel, on her credit and that of her owners, without notice of there being such a contract, or that those in possession, acting and directing as owners, are not, in fact, owners. Semble—The contract, by its terms, passes a present title to one half, as she now is, for a sum named. .
    The conversion of her into an ocean steamer, at a cost of not more than a stipulated sum, is a matter independent of the contract of sale. The purchaser is to have a credit of fifteen months from the time the conversion should be completed. The vendor having made the conversion, within a time not objected to, as unreasonable or otherwise, and the vessel having been registered in the joint names of the two, as owners, on the ■ affidavit of the purchaser, while the repairs sued for were being made, the purchaser cannot successfully object, in such an action, that, as between him and such plaintiffs, he and his vendor were not joint owners of the vessel.
    Dueb, J., dissenting.
    (Before Duer, Bosworth, and Slobson, J.J.)
    April 12;
    May 6, 1854.
    . This action came "before the court on appeal from a judgment of the Special Term. It was tried on the 15th of June, 1853, "before Justice Bosworth and a jury. The plaintiffs, William J. Decker and Charles Brown, in their complaint, alleged that the defendants, William P. Furniss and William H. Brown, were indebted to the plaintiffs, who are copartners in business as ship-joiners, in the sum of $1,333 T272„, with interest from the 26th of January, 1850, for the work and labor, care and diligence of the plaintiffs, béfore that time, done, performed, and bestowed, in and for the defendants, and at their special instance and request, and for materials found, provided, and used' in, and about, and upon the steamer Rhode Island, of which steamer the defendants, during the said time, &e., were joint owners, and prayed judgment for that sum.
    The defendant, Brown, put in no answer. The defendant Furniss, by his answer, denied—
    First, that at the several times mentioned in the complaint, or at any or either of them, the defendants were owners of the steamboat Rhode Island.
    Second. Any knowledge or information of the other matters stated in the complaint, sufficient to form a belief as to the truth thereof.
    Third. Any indebtedness to the plaintiffs, by reason of the matters stated in the complaint, or otherwise.
    On. the trial defendant, Furniss, admitted that the plaintiffs performed labor upon, and furnished materials used upon, the steamer Rhode Island, from December 8, 1849, to January 26, 1850, inclusive, of the value of $1,333 22. He also admitted the execution of a written agreement, which the plaintiff read in evidence, as follows:
    “The present agreement between William H. Brown, shipbuilder, on the first part, and William P. Furniss, merchant, on the other part, witnesseth:
    “ William H. Brown sells to William P. Furniss the one-half of the steamboat6 Rhode Island,’ burden 1,000 tons, or thereabouts, with all her tackle, appurtenances, boats, and furniture, as she is now completely fitted and furnished, for the transportation of passengers on the Sound, at the rate of fifty thousand dollars for the whole boat, payable in fifteen months, in William P. Furniss’ notes, favor of said Wm. H. Brown; notes to be dated from the date said steamboat ‘ Rhode Island’ is out of the carpenter’s hands, fit and ready for sea, coals and provisions excepted.
    “ Said William H. Brown is to proceed and fit up said steamboat1 Rhode Island,’ in a suitable manner for her to proceed from New York to the Pacific, via the Straits of Magellan, and to trade along the west coast of America, or in the rivers of the same, as may be thought most advantageous by said William P. Furniss, after her arrival there; the outfits for said boat, for carpenter, smith, sails and rigging, and steam machinery, is not to exceed ten thousand dollars, and as much less as possible—William P. Furniss’ half of which is also payable in his notes favor of William H. Brown, at fifteen months from date said steamboat is done, completed, and out of the workmen’s hands, and fit for sea. The boat is to have two or more boats, and a launch at least thirty-five feet long by ten wide, and coppered, suitable to land cargo in, from on board the steamer in the Pacific.
    “ William P. Furniss is to be the sole agent for this steamer in the port of New York, and "to have the appointing Of all other agents in all other ports, both on the Atlantic and Pacific coasts; he is to be allowed a commission of five per cent, on all receipts for freight and passengers carried by the boat, and received by him, as well as on all amounts which may be remitted to him, for account of the boat from the Pacific, from time to time; also on account of all disbursements made by him for the boat ‘ Rhode Island.’
    “ William P. Furniss is to account, from time to time, for moneys he may receive into his hands, to William H. Brown, or other owners of the boat; first paying himself all and any advance he may have made for the steamer ‘ Rhode Island.’
    “ It is further understood, that each owner is to insure his own interest in said boat, but that William P. Furniss is at liberty to insure a sum sufficient to cover any advances he may be under at any time for said steamboat ‘ Rhode Island.’
    
      “ A policy of insurance to be kept open to cover all shipments of specie from the Pacific to New York; premium to be charged to the boat, as well as one-half per cent.—Wm. P. Furniss’ commission for effecting the same.
    “ Dated New York, 1st Novémber, 1849.
    “ W. H. Brown, [l. s.]
    “ William P. Furniss. [l. s.]
    “ Signed in presence of
    William Chalmers.”
    And then the counsel for the plaintiffs called as a witness on their part-—
    
      
      Edmund Elass, who, being duly sworn, testified that he was a ship-joiner, and that he worked upon the steamboat Rhode Island when she was lying at the foot of Twelfth street. That he knew the defendant Furniss, and saw him on the steamboat, about the first of November, 1849. That he saw the defendant, William P. Furniss, there three or four times a week, while the steamboat was lying there at the dock. That the steamboat left the dock, about the last of January, 1850-On one occasion the defendant, Furniss, came to witness. He was at work putting in some coal bunkers, down in the cabin. Hr. Furniss said they were not strong enough, and proposed putting stanchions all along the side of the coal bunkers, from the cabin deck, along under the beams, to support the cabin below. This was in the latter part of December. Witness told him that witness would send down for Hr. Decker: witness was at work there for Hr. Decker. Hr. Decker came up there, and the work was done according to Hr. Furniss’ directions. That was the only circumstance that Mr. Furniss told witness anything about. When he was there, he would'walk around and look at the work, the same way that any superintendent generally does.
    On cross-examination, he testified: That he never saw the defendant, William P. Furniss, before he came there. That he never had any business transactions with him: That witness was at work on the steamboat, from about the first of December ; and during the period that he was there, he should think Hr. Furniss was there three or four times a week. He was never introduced to him by anybody, and never had any conversation with him except at that one time. There were men about witness when that conversation occurred—(they called him William P. Furniss)—but he could not say whether they heard the conversation or not. William J. Decker told him what Mr. Furniss’ name was. John Englis also mentioned it. He did not recollect the particular day when Hr. Decker told him Hr. Furniss’ name. Mr. Englis told him some time during the two months that witness was at work there. Witness was induced to ask, because he was employed by Mr. Decker. That after Mr. Furniss made the suggestions respecting the stanchions for the coal bunkers, witness did the work as Hr.- Decker directed him; that Mr. Brown, one of the plaintiffs, is a brother of William H. Brown, one of the defendants.
    The counsel for the plaintiffs next called as witness on their part,
    
      James C. Perry, who, having been sworn, testified that he was a ship-joiner, and about the first of November, 1849, was in the employ of Decker & Brown, and continued until 1850. That he worked on the steamboat Rhode Island within the time. That she was lying at the foot of Twelfth street. Mr. Plass worked there during the same time with witness. That he knew the person who was there, and who was represented as Mr. Furniss. He was there three or four times a week, and generally came there about the middle of the day. He was walking about there with the defendant, Mr. Brown, superintending and seeing what was going on. He once gave directions to witness about work. Mr. William H. Brown had told witness to fix one of the shutters in the fire-room. As witness was fixing it, Mr. Furniss came to the fire-room door and asked witness what he was doing, and witness told him that he was going to make the shutter so as to slide. He said, “ I won’t have it so. It won’t b¿ strong enough.” He would have it cut in two, and swung in two parts on the outside. While witness was at work at it, William H. Brown came in and says, “ Perry, what are you doing ?” and witness said, Mr. Furniss won’t have it slide. He wants the shutters to open outside. Mr. Brown said nothing, and witness finished the shutters according to the orders of Mr. Furniss. Witness was there when the steamboat started away from the foot of Twelfth street. Witness never had any conversation with Mr. Furniss except on that one occasion. Did not know at that time what Mr. Furniss’ first name was. Don’t know whether it is William or William P.
    The counsel for the plaintiffs then read in evidence a certified copy of the enrolment of the steamboat Rhode Island, in the district of New York, dated January 21, 1850, viz.: “ That William P. Furniss, of the city, county, and state of New York, swore that he and William H. Brown, of same city, county, and state, were the owners of the vessel called the 6 Rhode Island,’ whereof John Colby was master, built at New York in 1836, enlarged 1845, as per enrolment (182), in November 20, 1849, now cancelled, property changed in part, certifying said vessel to have one deck, two hundred and eighty six feet length, twenty-eight feet breadth, ten feet ten inches depth, eight hundred and eighteen 75-95 tons, square stern, and no head; said Furniss having agreed to all the requisitions of the act of Congress, and said steamer duly registered at the port of New York.”
    The counsel for the plaintiffs then rested their case.
    Whereupon the counsel for the defendant, William P. Furniss, moved to dismiss the complaint as against the defendant Furniss, upon the ground that the evidence so given, as aforesaid, did not show any liability on the part of the defendant Furniss, for the bill sought to be recovered in this action, nor entitle the plaintiffs to have the question of such liability submitted to the jury.
    His honor the judge overruled the motion, and to his decision thereupon the counsel for the defendant Furniss then and there excepted.
    The evidence having been concluded, his honor the judge then charged the jury, that there was no dispute as to the amount of the demand of plaintiffs, and that the only question in the case was, whether upon the evidence the plaintiffs were entitled to recover against the defendant Furniss, as well as against the defendant Brown.
    The judge then instructed the jury, that the plaintiffs were entitled to a verdict against both defendants, for the amount due to the plaintiffs on the bill in question, to which charge the counsel for the defendant Furniss then and there excepted.
    The jury, under the charge aforesaid, rendered a verdict for the plaintiffs, for sixteen hundred and forty-six dollars and eighty-eight cents.
    A judgment having been entered on the verdict, the defendant Furniss appealed from the judgment to the General Term.
    
      E. Sandford, Esq., for defendant Furniss, made the following points.
    
      - I. The defendant, William P. Furniss, was not a joint owner of the steamboat Rhode Island at the time the repairs in question were made, nor is he liable therefor to the plaintiffs. 1. On the first of November, 1849, the defendant, William H. Brown, was the sole owner of the boat, and was in the sole and unqualified possession of her. That possession was not changed in any manner until the twenty-first of January, 1850. 2. The agreement given in evidence was wholly an executory contract. Although, in the introductory part, the words used are, “ William H. Brown sells to William P. Furniss,” from the context, and the other provisions in the agreement, it is manifest that they were intended to express that he “agrees to sell,” upon the terms therein stated being complied with on his part: then, and at such time, and in that event only, Hr. Furniss agreed to pay the price in his notes in favor of Brown, “ notes to be dated from the date said steamboat Rhode Island is out of the carpenter’s hands, fit and ready for sea, coals and provisions excepted.” Until Hr. Brown completed the part of the contract which was to be executed by them, Hr. Furniss could not be called upon to give any notes, nor did he incur any liability to Brown to pay for one-half of the vessel (McDonald v. Hewitt, 15 J. R. 351; Hias v. Bates, 18 Vermont, 579; 4 Rawle, 261; Laidlaw v. Swift, 2 Mees. & Welsby, 602; Ward v. Shaw, 7 Wend. 404). 3. The seller had “ to proceed and fit up said steamboat Rhode Island in a suitable manner for her to proceed from New York to the Pacific.” He had to furnish for her two or more boats, and a launch, and to provide the necessary carpenter’s work, smith work, sales, rigging, and steam machinery to fit the vessel for the Pacific trade, at an expense not to exceed ten thousand dollars. What is termed in the agreement “ Hr. Furniss’ half of which,” is a part of the purchase price, to be paid by him, for one-half of the whole steamboat, as thus fitted up, in a suitable manner to proceed from New York to the Pacific, the amount of which was to be ascertained, not by the actual cost to Brown of the alterations and additions undertaken to be made by him, but by Brown’s charges therefor, up to the limit of ten thousand dollars ; if a larger expenditure had proved to be necessary to thus fit up the boat, Hr. Furniss could not have been charged with any part of the excess; if Mr. Brown did not thus fit up the boat, Mr. Furniss was not bound to accept any part of her, nor to take any interest in her. The vessel was to remain in the hands of the vendor until he should bring it into the condition in which it was agreed to be purchased and received. The law is so well settled, that where anything remains to be done, as between the seller and the buyer, before the goods are to be delivered, a present right of property does not attach in the buyer, although present terms of sale are used, that a citation of the authorities is deemed to be unnecessary (2 Kent’s Com. 495). 4. The fitting up the steamboat in such a manner as would be sufficient to change her from a boat for the transportation of passengers on the Sound to a suitable boat to proceed from Hew York to the Pacific, and to trade along the west coast of America, constituted the whole inducement to Mr. Furniss to agree to make the purchase when she was so changed. The agreement shows that, when thus prepared, the entire possession of the whole boat was to be delivered by Brown to Mr. Furniss. He was to be the sole agent of the steamer in Hew York, and to have the appointing of all other agents. The “ coals and provisions” were to be provided by him, when the vessel should be delivered by Brown, and accepted by Furniss; he was to make advances, and to have a commission on all disbursements made by him, and the boat was to be run under his exclusive possession and control on joint account. The understanding declared relative to insurance, relates to insurances after the fitting up, delivery, and acceptance of the boat, and the commencement of the agency of Mr. Furniss. He was not to be charged with the duty, nor bound to advance, nor to become liable for the insurance upon Brown’s interest in the boat; and he had authority to insure, at the joint expense, “ a sum sufficient to cover any advances he might be under, at any time, for said steamboat Rhode Island.” Hnder this contract, if the boat had been destroyed by fire before Brown had made the changes which he agreed to effect, the loss would have been wholly his, and Mr. Furniss would not have been liable for any part of the price. The boat was subject to the claims of the creditors of Brown, and he might-have sold and delivered the whole vessel to another, who would have acquired a complete title. The object of the stipulation, that Brown should thus fit up the boat, shows the intention of the parties to have been to make it a condition precedent, and no property passed to Mr. Furniss until it was complied with (Crookshank v. Bussell, 18 J. R. 58; Sewall v. Fitch, 8 Cow. 215; Mixco v. Howarth, 21 Pick. 205; Hight v. Ripley, 19 Maine 137; Spencer v. Cone, 1 Met. 283). 5. The agreement shows, also, that the delivery of the vessel, and the payment of the purchase money, were to be concurrent acts. The time fixed for the mutual performance was the period when “ said steamboat is done, completed, and out of the workmen’s hands, and fit for sea.” If, at that time, Brown had refused to deliver, upon an offer of payment, or Furniss had refused to accept and pay, upon an offer by Brown to deliver, the contract would have become void (2 Kent’s Com. 496). 6. The bill of sale is the true and proper muniment of title to a ship or vessel, and the evidence shows that Mr. Furniss acquired such title to one-half of the Rhode Island, on the 21st January, 1850. Where no such bill of sale is produced, a sale and delivery must be proved. The evidence requisite to prove such sale, is the same as that required upon the sale of any other property (Norton v. Penniman, 1 Mason, 306, 317; La Jeune Eugenie, 2 Id. 407, 435; Ohl v. The Eagle Insurance Company, 4 Id. 390, 392; Badger v. Bank of Cumberland, 26 Maine R. 428, 434, 35; Wendover v. Hogedorne, 7 J. R. 308, 310; Bixby v. Franklin Insurance Company, 8 Pick. 86, 88; McDonald v. Hewitt, 15 J. K. 349, 51; Heckett v. Stearns, 7 Barb. 488 ; Cox v. Reid, 1 C. & P. 602; Shinelleo v. Hueston, 1 Coms. 261). 7. Brown, out of his own materials, or by materials and labor which he undertook to procure, agreed to construct upon the foundation of the old Long Island Sound steamboat, a steamer fitted for ocean navigation. Upon general principles, the property remained in him until the completion and delivery of a boat adapted to that employment (Merritt v. Johnson, 7 John’s Rep. 473; Gregory v. Striker, 2 Denio, 628, 29; Muchlow v. Mangles, 1 Jamet 318; Laidlaw v. Burlinson, 2 M. & W. 602, 14, 15; Johnson v. Hunt, 11 Ward, 137, 39). 8. If Furniss acquired any title under the executory agreement, still the exclusive possession continued in Brown, to make the alterations which he undertook to make. Furniss was out of possession, and is not liable, except upon his express contract to Brown ( Leonard v. Huntington, 15 J. R. 298; Thore v. Hicks, 7 Cow. 697, 99; Hussey v. Allen, 6 Mass. R. 163, 165). 9. If Mr. Furniss had been the sole owner of the steamboat, and had employed Brown to make the alterations in question, and in the execution of that employment, he had engaged the plaintiffs, as he did in this case, to do a portion of the work for him, the plaintiffs could not have maintained this personal action against the defendants, and if they had notice of the contract, could not have acquired any lien upon the vessel. The title to a vessel may furnish evidence that repairs are done under the authority and upon the credit of the legal owner, but it does no more; and if it appear that they were made under the authority and upon the credit of another, the legal owner will not be answerable. In this case the plaintiffs prove that Brown contracted with Furniss to do the work, which, in part, was performed by them; and the only inference the Court can draw, or which the jury were authorized to draw, from the evidence is, that the plaintiffs made a sub-contract with Brown to do this part of his undertaking, and Brown did not act as an agent for Furniss (Abbott on Shipping, 32, 33, and cases cited; Reeve v. Davis, 1 Al. & Ellis, 312, 15, 19; Frazer v. Marsh, 13 East, 238; Briggs v. Wilkinson, 7 B. & C. 30; Young v. Brander, 8 East. 10; Hollingsworth v. Dow, 19 Pick. 228, 29, 30; Jennings v. Griffiths, Ryan & Mov. 42). 10. To hold that the title was intended to pass, or did pass to Mr. Furniss upon the execution of the agreement, without regard to the change of the vessel to fit her for the purpose for which Mr. Furniss agreed to become the purchaser, is to lose sight of the situation of these parties, the business in which they proposed to engage, and its necessities (Clark v. The Merchants’ Bank, 2 Comst. 380, 84).
    II. The judge erred in his instruction to the jury. The judgment should be reversed, and a new trial granted.
    
      Albert Mathews, for plaintiffs.
    This action is brought to recover $1,333 22, and interest from January 26, 1850, for work done and materials furnished by direction of defendants on the steamer Rhode Island from December 8, 1849, to January 26,1850. The only question in ' the case is, whether at this time the defendant, Eurniss, was owner so far as to render him liable to third persons furnishing materials for the steamer.
    Eirst. November 1st, 1849, defendant, Eurniss, buys by bill of sale of that date, of defendant Brown, one-half of the steamer Rhode Island, “as she is now completely fitted and furnished for the transportation of passengers on the Sound, at the rate of fifty thousand dollars for the whole boat, payable in fifteen months in Eurniss’ notes, favor of Vm. H Brown.”
    The boat was to be fitted up for sea as provided by the terms of the bill of sale, “ the outfits for said boat for carpenter, &e., not to exceed ten thousand dollars,” Eurniss to pay one-half and Brown one-half. Eurniss was to be her sole agent in New York, and to have allowed him a commission of five per cent, on account of all disbursements made by him for the boat, and each owner was to insure his own interest in the boat.
    Second. January 21, 1850, Eurniss made oath at Custom House he was owner with Brown, and the vessel was registered in their joint names.
    Third. Eurniss was on the boat from day to day while the work was going on, directing the men (jointly with Brown) as to the work done.
    I. By virtue of the bill of sale of November 1st, Eurniss became joint owner, with Brown, of the vessel. The words are, Brown sells, in the present tense. (Furniss v. Brown, 8 How. S. H. R. 64.)
    
      II. Eurniss by his own acts confirms this interpretation of his contract: In the Supreme Court suit above cited he claimed this construction, and succeeded.
    HI. Being joint owner, acting as such, and in possession, he was liable in that capacity, and also as one of a copartnership as to third persons, jointly with Brown, for the work done according to his directions and for his benefit upon his property. (Miln v. Spinola, 4 Hill, 177; 6 Hill, 218; Flanders v. Merritt, 3 Barb. S. C. R. 201; (as to partnership) Durham v. Jarvis, 8 Barb. S. C. R. 94.)
   By the Court. Bosworth, J.

No evidence was given or offered by the defendants. There was no conflict in the evidence given by the plaintiffs. It either established, or was insufficient prima facie to establish, that the defendants were joint owners of the steamboat Rhode Island during the time the labor was performed, and the materials were furnished, to recover the value of which the action is brought. Whether they were such joint owners was the only question controverted at the trial.

The instrument of the first of Hovember, 1849, declares that defendant Brown “ hereby sells” one-half of the steamer “ as she now is,” at the rate of $50,000 for the whole. So far, the language and legal effect of the instrument are clear and unequivocal. They pass a present interest.

The only doubt arises out of the provision in relation to the payment of the purchase money. That was to be paid in the notes of Furniss, on time, and to be dated on a day then uncertain. Although the time when this day should arrive could not then be known, and possibly might not occur, yet the half of $50,000 was to be paid for a definite subject, in its then condition.

The sale by Brown, and purchase by Furniss, were made with the intent to convert the steamer into an ocean steamer at their joint expense, to be employed on their joint account.

Brown covenanted, construing the covenant most unfavorably to him, to convert her into an ocean steamer at an expense not exceeding $10,000, and Furniss agreed to pay half of the actual expense, within that limit. This covenant I regard as a distinct and independent covenant, and not as a conditional covenant, the full performance of which was essential to vesting title in Furniss to half of the steamer as she then was. Full performance fixed the day for the date of the notes to be given, for the half of the vessel sold on the 1st of Hovember, 1849, as she then was, as well as the date of the notes to be given for half of the cost of the alterations. Full performance of the covenant on the part of Brown was made; the vessel left her wharf completed on the last of January, 1850, and she was registered in the names of Brown and Furniss, as joint owners, on Furniss’ affidavit of such joint ownership. This affidavit was made two or three days before the alteration was fully completed, and before title vested in Furniss, if it did not vest on the execution and delivery of the instrument of November, or if it was not “ out of the carpenter’s hands, fit and ready for sea.” If out prior to making the affidavit, there is nothing to show when title vested, if it did not vest on the execution of the agreement.

This is not a controversy between Brown and Furniss, but is one between them and third persons. The acts of Furniss during the progress of the work, and with reference to it, in such a controversy, are to be considered, and their proper weight is to be given to them, and they may, of themselves, in a controversy like this, be conclusive. Furniss was almost daily inspecting the work and superintending it. He did not content himself with mere observation, which would have been proper if his purchase was only conditional, and dependent on the fact of her being converted into a steamer fit for ocean navigation. Such inspection would have been proper in case of a conditional purchase, to enable him to judge whether the conditions were fully performed—the performance of which would make it obligatory on him to pay the contract price.

But his directions were those of an owner, exercising the right of control, and in some instances they actually superseded those given by the defendant Brown. In such cases, the directions of Furniss were obeyed by the plaintiffs, and those of Brown disregarded. All such work was done literally by his personal order. Such acts are a practical construction by Furniss of the instrument of Uov. 1,1849, and treat it as passing at its date, a title to one-half of the steamer as she then was, and making them tenants in common from that date. They exhibit him acting as an actual joint owner with Brown in reference to the matter of converting her into an ocean steamer, and in fact exercising a paramount control with reference to the manner of doing the work. It was a control over these plaintiffs, who were neither parties to nor cognizant of the instrument of ÍTov. 1,1849, but who were third persons furnishing materials to the steamer, and expending labor upon her, on account of her owners. Who actually employed them was not shown nor attempted to be. In the absence of any express contract, credit is presumptively given to the persons in possesBion acting as owners. Those so in possession and so acting, hold themselves out to third persons as owners, and aré liable to them as such.

The instrument of Nov." 1,1849, contained apt and effective terms to then pass title to half of the vessel. Nothing remained to be done by the vendor, with respect to the subject matter for which $25,000 was to -be paid. That was to be paid for half of the steamer as she then was. The only thing contingent was the term of credit. That was to be fifteen months at all events, and as much longer as the period that might elapse between that date and the time of converting her'into an ocean steamer. Instead of contracting, in the first instance, with a third person to make the alterations, as between themselves, it was agreed that Brown should do it, at a cost not exceeding $10,000, and for less if practicable—and Furniss was to pay the $25,000 fifteen months from the time the change was completed. It was completed, and it is not suggested that this did not occur within the shortest period contemplated by the parties. Furniss undoubtedly had a right, under the other clauses of the contract, to appoint officers, employ a crew, engage passengers and freight, while the work was progressing, so as to commence loading her for a voyage to the Pacific the moment the repairs should be completed. Whether he did so, does not appear. The clause in respect to each defendant’s insuring his own interest, under what I regard as a fair construction of the whole instrument, was in force from its date. That clause, however, if the sale was clearly conditional, would only be effective from the time the sale became absolute and the title vested, and cannot have any controlling force given to it, in construing the contract.

A bill of sale reciting the registry is not essential to transfer the title. In the case of registered vessels, a bill of sale reciting the registry is requisite, not for the purpose of transferring the title, but for the purpose of securing her American character. The possession of one of two joint owners, is the possession of both. So far as there is any evidence of actual possession while the work was progressing, she was as much .controlled by Furniss as by Brown. That the delivery of a bill of sale of an interest in a ship will pass title, and that the subsequent pdssession of the part owner so selling will be the possession of both, no one, it is presumed, will deny.

We think the evidence given at the trial made out a clear • primó facie, case of the joint ownership of the defendants, as between them and the plaintiffs, during the time the materials were furnished and .the work, was done.

If the instrument of Hovember 1, 1849, had been still more express, and had positively declared that the one-half so bought by Furniss was from that time to be at his exclusive risk, as his absolute property, and had contained the same provisions, that it now does as- to the date of the notes, it would have been possible for events to occur making the right of Brown to recover the purchase money doubtful. The time of fixing the date of the notes, in the contemplation of the parties, was certain to arrive, and within a brief period. The agreement provides that Furniss might in the meantime contract liabilities on joint account, as if its arrival was certain and definite. That time did arrive, as the defendants anticipated. The title not only passed on the execution and delivery of the instrument of sale, but the time of payment arrived, and whatever doubts ■ there might have been on the face of the instrument alone, as to the rights and liabilities of the defendants, as between themselves, while the repairs were being made, if Furniss had not interfered with them; yet on the whole case, as between the defendants and the plaintiffs, who do not appear to have ever - heard of the agreement of the 1st of Hovember, 1849, and who were working on account of the owners, and following the di-. rections of the defendants, who were in possession and acting as such, Furniss in fact exercising the paramount authority and control, a primó fade case' of joint ownership was established, and the judgment must be affirmed.

Slosson, J.

Concurred in the conclusion that the judgment should be affirmed.

Duer, J.

As I am unable to concur in the opinion that has now been given, it is proper that I should state the grounds, of my dissent.

Ho express contract was proved upon the trial, nor is it. pretended, that the plaintiffs entered on their work believing that the defendant, Furniss, was a joint owner, and looking to his responsibility as such. The only question, therefore, is whether the evidence warrants us in saying that he was, in fact, a joint owner of the vessel during the time that the plaintiffs performed the work and furnished the materials for the agreed value of which the verdict was rendered. Had the evidence to establish this fact been confined to his acts and declarations during this period, it might have been deemed prima fade sufficient to charge him; but, for the very purpose of showing the origin and nature of his title, the plaintiffs themselves gave in evidence the articles of agreement between him and his co-defendant, Brown, and it is upon the true construction of this agreement that, in my judgment, the whole controversy turns. If he was an owner at all, while the repairs of the vessel were going on, he was so by force- of the agreement, and not otherwise.

• It is said, however, that his acts and declarations during this period may properly be taken into consideration as evidence of his own interpretation of the agreement, and that, by the interpretation he then gave, he ought to be concluded. It may well be doubted whether this evidbnce,. if tending to vary the legal import of the agreement, could be admitted at all;, but waiving the objection, it is manifest that the acts and declarations relied upon were- equivocal in their nature* and; in reality, just as consistent with- that interpretation of the-agreement on which the defendants’ counsel have insisted, and I find myself obliged to adopt,, as with .the supposition, that he claimed to interfere as owner. Considering the agreement as executory, it is plain that he- entered into it in the expectation and belief that the vessel,,if properly altered, might he profitably employed as an ocean steamer, and' with the- intention thus to employ her.

He had, therefore, a direct interest in- knowing that the' necessary alterations were so made as to render her in all respects fit and safe for this new and more hazardous - employment, and this interest is a sufficient explanation of all that he said and did. The terms of the agreement thus construed repel the inference that his conduct might otherwise have justified. It is also proper to be remarked that if the question whether he interfered as owner was at all important, its determination ought to have been submitted to the jury, and that, upon this supposition, the positive direction given to the jury was certainly erroneous.

It is not denied that a purchaser may, by his acts or statements, render himself liable, as owner, to third persons, even when the agreement, as between him and the seller, is executory and has not yet been executed; but to produce this consequence, the act which is relied on must be unequivocal, the statement clear and explicit, and it must also appear that the person claiming redress was induced by these means to expend money, perform labor, or incur responsibility. It is in such cases, only, that an estoppel arises. The principle which governs all the decisions on this subject is lucidly stated by Lord Denman in Pickard v. Sears, 6 A. and E. 474. It is that where one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time. (Vide also Harris v. Watson, 2 B. and C. 540; Howard v. Dunkins, 2 Camp. 344; Blackburn on Sales, 162, 3.) The principle would apply to this case had it been proved that the defendant by his acts or words wilfully induced the plaintiffs to believe that he was a part owner of the vessel, and that it was in this belief that they commenced and prosecuted their work. But there is no such evidence, nor have we the least right to presume that such was the fact. On the contrary, as by the terms of the agreement, the necessary alterations and repairs of the vessel were to be made by Brown alone, and, in the first instance, at his sole expense, the presumption is that the plaintiffs were employed by him alone, and that by him alone they expected to be paid. I see no reason for believing that in any stage of their work they relied upon the' credit of Furniss, and most assuredly no court or jury could be justified in saying, upon the testimony before us, that this reliance, if entertained, was wilfully induced by his conduct.

Rejecting then the testimony of the witnesses Plass and Perry, if not as inadmissible, yet as certainly immaterial, the next question is, whether upon the proofs that remain, the judge upon the trial ought not to have dismissed the complaint, instead of instructing the jury to render their verdict for the plaintiff.

The objections that were raised upon the argument to the plaintiff’s recovery, even upon the supposition that Furniss was proved tobe a joint owner, I do not propose to examine, although I am not to be understood as saying that these may not deserve a serious consideration. But, for the purposes of this opinion, I hold that the jury were rightly instructed, provided the agreement between Furniss. and Brown by its just construction constituted them joint owners from the time of its execution. If the agreement effected no immediate change of property, I do not at all doubt that the complaint ought to have been dismissed.

It cannot be denied that the words of the first clause of the agreement ending with the words “ payable in fifteen months in Wm. P. Furniss’ notes, favor of said Wm. H. Brown,” import an absolute and present sale. They transfer the property in one-half of the vessel to Furniss, and create a positive obligation on his part for the payment of the stipulated price, $25,000, in fifteen months from the date of the agreement. Ha’d this clause been the whole agreement, no question as to the ownership of Furniss could have been raised. But it is not the whole agreement, and in this, as in all other cases, it is from the whole instrument that we are bound to collect the intention of the parties, and it is the intention thus collected that we are bound to follow. As where the intention is manifest that the property shall immediately pass, the1 words “ agree to sell,” it has been frequently held, must be- construed as “ sells,” so when the opposite intent is equally manifest, the word “ sells ” must be construed to refer not to an immediate,, but to a future transfer. In neither caséis the real intention to> be sacrificed to a literal interpretation of the words that happen, to be used. Hence, if in this case it shall appear from the whole instrument that it was the clear- intention of the parties that the defendant Furniss should not be liable at all for any part of the stipulated price, until and unless the ¡Rhode Island, by the necessary alterations, should be converted into an ocean steamer, it is this intention that we must declare and follow, although as a necessary consequence we shall be obliged to hold, in apparent contradiction to the words of the first clause of the agreement, that the intended sale was not immediate and absolute, but future and conditional.

If the alteration of the vessel in the manner provided was a condition precedent to his liability, it was also a condition precedent to the vesting of the property, since it would be absurd to suppose that it was meant that he should acquire the rights of an owner, when he had neither paid, nor was bound to pay, any part óf the consideration. If his obligation to pay was conditional, so must have been the sale. It is a general rule, that when a contract of sale passes an immediate title, the property, although it may remain in the possession of the seller, and the price is still unpaid, is, from that time at the risk of the purchaser (Blackburn on Sales, pp. 172-3; Pothier Contrat du Yente, p. iv. p. 139). Hence, if the defendant Furniss became a joint owner by the execution of the agreement, the property from that time was at his equal risk, so that if the vessel, without the fault of Brown, had been destroyed by fire or any other casualty before the intended alterations were completed, he would still have been liable to pay at the expiration of the term of credit the whole of the stipulated price. But if the terms of the agreement, considered as a whole, render it certain that in the event supposed no such obligation on his part would have existed, the vessel, until the required alterations were completed, was in no sense, at his risk, and consequently, during this interval, he was in no sense an owner. The questions, therefore, whether by the just construction of the agreement his obligation to pay one-half of the estimated value of the vessel was absolute or conditional, and whether from the date of the agreement he was or was not a joint owner are seen to be identical; nor do I understand that those positions were meant to be denied by the counsel for the plaintiff upon the argument, or are now denied by my brethren.

We have seen that Furniss was to make the required payment for his one-half of the boat in fifteen months in his own notes, meaning undoubtedly that the notes so to he given should have ¡fifteen months to run, not that they should not be given at all until the fifteen months had expired. Tow, if it was the intention of the parties that the property in one-half of the vessel should immediately pass, and a positive obligation for the payment of one-half of the estimated value be created, no reason has been nor, as it seems to me, can be stated, why the notes of Furniss for $25,000, bearing even date with the agreement, and payable in fifteen months from that date, were not immediately given or required to be given. By the express words of the agreement, the sale of one-half of the boat is made “ at the rate of fifty thousand dollars for the whole boat ”—that is, $25,000, payable in Furniss’s notes, and if the sale was meant to be immediate and absolute, so was the obligation to make the payment in the form required ; and the converse of the proposition is equally true, that if the obligation to make this payment was future and conditional, so was the sale.

I, therefore, repeat that had it been intended that Furniss should be liable, in all events, for the payment of the $25,000, his notes for that amount, which were to be the sole evidence of his liability, would have been immediately taken, and by the terms of the agreement would have been required to be given.

The words, however, which immediately follow in the -agreement, the clause that has been quoted, are these: “Totes (i. e. of Furniss) to be dated from the date said steamboat Rhode Island is out of the carpenter’s hands, fit and ready for sea,. coals and provisions excepted.” As it was uncertain when the boat would be out of the carpenter’s hands in the state required, and until then the notes could not be dated, it is plain that until then it was not meant that they should be given. It has been said that this provision operates only as an extension of the term of credit, without affecting the positive obligation of payment which the preceding clause had created, and the observation would be perfectly just had the giving of the notes been postponed to a day certain, thus making it the duty of Furniss to deliver them on that day, whatever might then be the actual condition of the vessel; but not only is the future day upon which the notes are to be given uncertain, but the event is equally so, since the vessel might be destroyed before she was out of the carpenter’s hands, or his task of making her “fit and ready.for sea,” might from various causes never be completed. As the obligation to give the notes is thus made to depend upon a contingent event, I see no escape from the conclusion that, unless the contingency should happen, they were not to be given at all.- In other words, that by the intention of the parties, the vessel being made “ fit and ready for sea” was a condition precedent to the defendant’s liability. Had it been intended to bind “ him,” in all events, to the payment of the stipulated price, it is hardly credible that an express provision fixing the time and mode of payment, in case the vessel should be destroyed, or the necessary alterations not be completed, would not have been found in the agreement. The only provision for payment that we find is conditional. Had any other been contemplated by the parties, I am forced to believe it would have been expressed.

The next provisions in the agreement explain what is meant by the steamboat being “ out of the carpenter’s hands,” and throw additional light upon that construction of the agreement which alone seems to me to be reasonable. They make it the duty of Brown “ to proceed and fit up the Rhode Island, in a suitable manner, to enable her to proceed from Héw York to the Pacific, via the Straits of Magellan, for the purpose of trading along the West Coast of America,” in the manner that Furniss might deem most advantageous. They declare that the outfits for the boat for carpenter, smith, sails, rigging, and steam machinery, are not to exceed $10,000, and to be as much less as possible; and that Furniss’s half of this expense shall “ also be payable in his notes, in favor of Brown, at fifteen months from date said steamboat is done, completed, and out of the workmen’s hands, fit for sea.” It is then provided that Furniss shall be the sole agent for the steamer in the port of Hew York, shall have the sole power of appointing agents in other ports, and shall be entitled to a commission of five per cent, on all receipts and disbursements on account of the vessel..

The first observation which these provisions suggest is, that they render it plain that the notes of Furniss for the $25,000, as well as for his one half of the outfits, were to be payable in fifteen months from their own date, and not from that of the agreement; in other words, were to be payable in fifteen months from the completion of the work necessary to fit the steamer for sea. How, if we turn again to the first clause of the agreement, we find that the language is most explicit, that the sale is made for the one half of $50,000, payable in fifteen months, plainly meaning from the time of the sale. The sale contemplated by the parties is, therefore, a sale upon credit— the term of credit in this, as in all similar sales, being intended to commence when the transfer of the property should be complete. As the subsequent provisions, however, show that the term of credit was not to commence until the outfits, which Brown stipulated to make, should be completed, it seems a necessary conclusion that, until then, the sale, as an actual transfer of property, was never meant to take effect. "Until then the agreement was executory. Substitute “ agrees to sell ” for sells,” in the first clause, you render all the provisions of the instrument perfectly consistent—adhere to the literal meaning of the word, you overrule the intention which the provisions that follow clearly manifest.

I next observe that it is evident, upon the face of the agreement, that the sole object of Furniss in making the contract was to secure the employment of the steamer in the coasting trade of the Pacific—and this not merely with a view to the gains that he might derive, as part owner, from such employment—but much more to the large commissions to which, as sole agent, he was to be entitled, a source of profit, which merchants well understand and highly appreciate. He had no motive for becoming the owner, and probably would have declined to be the agent of the vessel, in her actual state. It is, therefore, most improbable that he meant to complete the purchase so as to vest the title and render himself liable, in all events, for the payment of the purchase money before it was ascertained that the vessel, by the necessary alterations, was fitted for her intended employment, and, especially, rendered competent to perform the long and hazardous voyage which must precede her arrival upon the coast of the Pacific. It is most improbable that he meant to deprive himself of the power of rejecting the vessel, and rescinding the entire contract, if the work that was agreed to he done should be, in his judgment, wholly insufficient to render her fit and ready for sea, in the sense of the agreement, that is, to perform the voyage and the service intended. It is certain, however, that he had no such power, if he became a joint owner by force of the agreement, and from its date. Upon this supposition the undertaking of Brown to proceed and fit the steamer for sea was an independent covenant, and its performance, therefore, by him not a condition precedent to the liability of Furniss. Had it been broken the .only remedy of Furniss would have been in an action for damages, but the breach would have given him no right to rescind the contract. It would not have divested his title as owner, nor have released him from his obligation to pay the stipulated price. I find it, however, impossible to believe that this was understood by the parties to be their actual relation, but, on the contrary, am satisfied that it was the understanding of both that Furniss was not to be liable, at all, as a purchaser until the satisfactory completion by Brown of the work which he engaged to perform; and that it was in consequence of this understanding, and with an express view to carry it into effect, that the notes of Furniss were not to be given until the work was done. The sale was, therefore, conditional, and Furniss was not an owner until, by the fulfilment of the conditions, it became absolute. It became absolute when he was registered as owner in January, 1850, and it has not been pretended, and it would be unjust to hold, that the registry had a retroactive effect, so as to render him liable as owner for work previously done, and materials previously furnished. We are bound to presume that he has paid Brown in full, according to the terms of his contract, and it is only a stringent legal necessity that could justify us in saying that he is also liable to the plaintiffs, between whom and himself no contract was made, and no privity is shown to have existed.

Í remark, in conclusion, that with the exception of the word “ sells,” I find no provision or word in the whole instrument at all inconsistent with that construction of the agreement between Furniss and Brown upon which I have insisted.

The division of the consideration to be paid by Furniss into two distinct sums is readily explained. He was willing to pay for one-half of the steamer when fitted for sea, one-half of her estimated value as she then was, and in addition an equal portion, if not exceeding $5,000,.of the necessary cost of her outfit ; but the cost of the outfits, from the nature of the work to be done, was uncertain, and the parties were unable to fix, to their satisfaction, the sum for which he consented to be liable, and it became necessary, therefore, in order to ascertain the price, to separate the present value and the future cost; but the sums thus separated, when his proportion of the costs was ascertained, formed an entire consideration payable for the same subject, at the same time, and in the same manner.

It may be admitted, that Furniss, while the work upon the steamer was in progress, might have appointed officers, engaged a crew, and made contracts for freight and passengers, but it is not perceived that the admission has any bearing upon the argument. Such contracts, if made by him, were of necessity conditional, since they could only be carried into effect, when the vessel was fitted and ready to commence her voyage to the Pacific. Their existence would furnish no proof that they were made by him as an actual owner, since he had an equal right to make them in the expectation that he would - become so, and it was only, when he became so, that they could be binding at all. It is, however, to be observed that,.if such preliminary contracts were, in fact, made by Furniss, they could properly have been made, under the terms of the agreement, only in his capacity of sole agent for the vessel, -and that this agency might well commence before his ownership.

The clause that “ each owner is to insure his own interest in the vessel” leaves the question, as to the time when the ownership was to commence, exactly where it was, and is, therefore, plainly unimportant. And to assume that Furniss, as owner, might have insured one-half of the boat, as soon as the agreement was signed, is to assume the very question to be decided. If the other provisions in the instrument were not sufficient to constitute him an immediate owner he had then no insurable interest, and any policy effected by him, before his title was acquired, would have been void. In my opinion the clause in question refers exclusively to insurances to be made upon the vessel when employed, as she was intended to be, for the joint benefit of her joint owners, and this seems evident from the clause which follows, which provides that Furniss shall also be at liberty to insure to cover his advances, for certainly no such advances were contemplated to be made, until the vessel should be employed in the manner I have stated.

Although I have not been able to find in the books any case exactly similar in its circumstances to the present, yet there are many cases and classes of cases, which, in my opinion, bear so close an analogy, that-in principle they are not to be■ distinguished. And to some of these I shall now briefly refer.

It is settled law that where any act remains to be done by the seller to goods left in his possession, for the purpose of ascertaining the price,' until the act is done, the property is unchanged, and the goods continue at the risk of the seller (Rugg v. Merrett, 11 East. 210 ; Rush v. Davis, 2 M. and Wels. 396 ; Simmons v. Swift, 5 B. and C. 857 ; McDonald v. Hewitt, 15 John. 349; Rapelyea v. Mackie, 6 Cow. 250 ; Outwater v. Dodge, 7 Cow. 85). Here the steamboat was to remain in the possession of Brown until the completion of the additional work, which he was to perform, and, until this work was done, the price to be paid by Eurniss, as it depended in part upon the actual cost of the work, could not be ascertained.

It is also settled and familiar law, that when the delivery of goods sold, and the payment of the price, whether in cash or in notes can make no difference, are to be contemporaneous acts, the property, until such delivery and payment, remains in the seller (Bussey v. Barnett, 9 M. and W. 312; Bishop v. Shillito, 2 B. and Al. 329, n.; Palmer, v. Hand, 13 John. 434; Chapman v. Lathrop, 6 Cow. 110; Lupin v. Marie, 6 Wend. 77; Levin v. Smith, 1 Den. 571). Here Brown was entitled to the exclusive possession until the vessel was fitted for sea ; the exclusive possession and control were then to pass to Eurniss, who was at the same time to make the stipulated payment by his notes. Had Eurniss, when he obtained the sole possession, refused to deliver his notes, the decision of the king’s bench in Bishop v. Shillito seems conclusive to show that Brown as owner could have maintained an action of trover, or. replevin, but this he could certainly not have done, if the property vested in Eurniss, by force of the original agreement.

It is not doubted, that goods at sea may be the subject of an immediate sale, and when the price is paid, or there is an obligation to pay it upon a day certain, the property vests at once in the buyer, and the arrival of the goods is at his risk; but if the price is not to be paid until the arrival of the goods, there is no change of property until their arrival, and no liability on the part of the buyer. The sale is conditional, and if the goods fail to arrive, the contract is at an end. (Boyd v. Siffken, 2 Camp. 326; Russell v. Michell, 3 Wend. 112; Shields v. Pettee, 2 Sand. S. C. R. 262.) In Shields v. Pettee the rule was applied by this court, although in the bought and sold note, which was the evidence of the contract, the condition of arrival was not stated, and the words were those of a present sale, and this decision was affirmed in the Court of Appeals.

The principle of these decisions is, that when the payment of the price depends upon a contingent event, the property does not pass until the contingency happens, and when it fails to happen, the contract is dissolved. The application of the principle to the case before us is obvious, and seems to be decisive.

Perhaps the two cases that bear the nearest resemblance to the present, are Clarke v. Spence, 3 Ad. and Ell. 448, and Laidler v. Burlinson, 2 M. and Wels. 602. In each case the contract of sale related to a ship then on the stocks, and which the seller and builder contracted to finish, and it was admitted in each, that the subject of the contract being the particular ship described, was definite and ascertained. In Clarke v. Spence the price was to be paid in instalments, as successive portions of the work should be completed, and the court held that the property vested in the successive portions as the instalments became due and. were actually paid. In Laidler v. Burlinson no part of the price was to be paid until the ship was finished, and the court, upon this ground distinguishing the case from Clarke v. Spence, held that the property remained in the seller. I know no reason why this decision is not to be regarded as a direct authority in favor of the defendant. Here the Rhode Island, in reference to the purpose for which she was bought, was unfinished. Brown, the seller and builder, agreed to finish her, and until finished no part of the price was to be paid by Eurniss. (Vide Andrews v. Durant, 1 Kernan, 35.)

I shall make no remarks on the decision of the Supreme Court in Furniss v. Brown (8 How. P. R. p. 59), except to say that the facts in that case were materially different, since it .distinctly appeared that by the fulfilment of the conditions the sale had become absolute. The decision I therefore admit to have been correct, although all the reasoning of the learned judge by whom it was delivered is far from commanding my unqualified assent.

It follows from the observations I have made, and the ■ authorities I have cited, that in my opinion the complaint ought to have been dismissed upon the trial, and consequently that the verdict ought now to be set aside and a new trial be granted. But as my brethren think otherwise, the judgment upon the verdict is affirmed, with costs.  