
    
      John S. Jones vs. Blum & Cobia.
    
    The defendants became the indorsers of J S, owner of the Brig Hayne, and for the purpose of protecting their indorsements, J S transferred to them, by surrendering the old register and taking out a new one in their names, the legal title to the Hayne. J S, for some time afterwards, used and navigated the Hayne for his own exclusive benefit, and, during the time that he so used her, supplies were furnished by the plaintiff for her use, for which this action was brought. Held that, if the supplies were furnished on the credit of J S alone, the defendants were not liable; and that, in order to explain the nature of J S’s possession, and shew why it was that he was using the Hayne as his own, it was competent to shew by parol, that the transfer of the title was in the nature of a mortgage to secure the defendants as the indorsers of J S.
    In general, the owner is liable for all supplies furnished his ship, because, in most cases, she is navigated for his benefit, and this in general is to be presumed, unless the contrary appear. But where it is clearly proved that the legal owner has no interest in her freights, that she is navigated under the entire control, and for the exclusive benefit of, another person, such person pro hac vice is the owner, and if upon his individual credit the supplies are furnished, then the owner is not liable. In such case the question is, to whom was the credit given ?
    
      Before Evans, J. at Charleston, Fall Term, 1845.
    The report of the presiding Judge is as follows.
    “ Prior to 4th May, 1842, James M. Stocker was the owner of the Brig Hayne, employed in the navigation between Charleston and Cuba. About that time Stocker’s affairs became embarrassed, and his credit, at the Banks, was shaken, although he was not (as he said) insolvent. To enable him to .carry on his business, he applied to Blum & Cobia, (who were already on his paper for about $2,600,) to become his indorsers for a further sum, and by way of security, proposed to transfer the ‘Hayne’ to them. This could only be done, according to the practice of the custom house, by the surrender of the old register and taking out a new one in the name of Blum & Cobia, ■which was accordingly done, bnt it was well understood that this was a mere security to protect their indorsements,, and was to affect the title of Stocker only in the event that the notes indorsed by them for Stocker were unpaid. After this transaction, the business of the Hayne went on as before; Stocker purchased all the supplies, employed the brig as before for his own use ; appointed the officers and received all the freights and profits ; the defendants in no way interfering or deriving any benefit from her. In January, Stocker failed whilst the brig was at sea, and on her return the defendants took possession, as they had then become liable, and perhaps had paid the indorsed notes, amounting to upwards of $0000.
    “Before the transfer of the Hayne by changing her register, the plaintiff had furnished supplies for her from time to time, and continued to so after the transfer. The charges were made thus : — “ Brig Hayne, master & owners, Hr.” The plaintiff had also a demand on Stocker for supplies for the brig Thames. These demands were presented to Stocker, as personal liabilities, and on the 6th August he gave his note for the whole amount, which was subsequently renewed and reduced to $850. In October the Hayne returned into port dismasted and had to be refitted. The plaintiff, Jones, applied to Stocker, and offered to furnish what was needed in his line for her, and after some negociation about the terms and mode of pay.ment, Stocker agreed to buy from him. This account was settled by Stocker’s note at four months, dated 2d. November.
    “ On the trial, the question was, whether Blum & Cobia were liable for the amounts against the Hayne which had accrued subsequently to the 4th May. On the part of the defendants, Stocker, who had taken the benefit of the bankrupt Act, was examined. He said he was the owner of the brig Hayne from July, 1841, and from that time up to the last of January, 1843, had the entire and exclusive management of her. He appointed her captain, furnished her supplies and received her freights. He had dealings with the plaintiff for years. He contracted, personally, for her supplies, and the credit was given to him alone.
    
      “ He continued to sail the Hayne for his own exclusive benefit, up to the time the defendants took her out of his possession, about the 1st. February, 1843. They were never consulted about the management of her, and no one but himself was ever applied to for payment for her supplies. The plaintiff’s accounts were rendered to him in this form :
    J. M. Stocker to J. S. Jones-Dr.
    To amount of Brig Hayne’s account,
    “ “ “ Thames’ “
    
    “I charged the jury, that the private understanding between Stocker and the defendants, that the transfer, by a change of her register, should only operate as a mortgage, could not affect the plaintiff’s right to recover. He was the legal owner so far as all other persons were concerned, and subject to all the liabilities of ownership.
    2. That, in general, the owner was liable for all supplies furnished his ship, because, in most cases, she was navigated for his benefit; and this would, in general, be presumed, unless the contrary appeared. But where it was satisfactorily proved that the legal owner had no interest in her freights, that she was navigated under the entire control and for the exclusive benefit of another, such person pro hac vice would be owner, and if upon his individual credit the supplies were furnished, then the legal owner was not liable. The question in such cases is, as is said by Chancellor Kent in his Commentaries, ‘ to whom was the credit given V
    
    
      “ The admission of evidence to shew, that although, by the change of register, the defendants became the legal owners of the Hayne, yet by a private agreement with Stocker, they were only mortgagees, was objected to at the trial, but I allowed it, as I then stated, not to explain; or vary, or contradict the legal effect and construction of the bill of sale or register of the ship, but tó shew the nature of Stocker’s possession, and to shew why it was that he was using and navigating the defendants’ ship for his own use and benefit, and that pro hac vice he was the owner.
    “ The jury found for the plaintiff $27,50, that part of the account which had accrued after the Hayne returned into port, when the defendants took possession.”
    The plaintiff appealed, and now moved for a new trial, on the following grounds.
    1. Because his Honor admitted the testimony of Mr. Stocker and Mr. Lord, to explain, vary and contradict the bill of sale from Stocker to the defendants.
    2. Because his Honor charged the jury, that if the plaintiff gave credit to Stocker, the defendants were not liable; whereas, it is respectfully submitted, that his Hon- or should have charged that if the plaintiff gave credit to the owner (whoever he might be) and believing Stocker to be the owner, gave credit to him, the defendants were liable.
    
      F. D. Richardson, for the motion.
    
      Memminger, contra.
   Curia, per Evans, J.

In the case of Champlin vs. Butler, 18 Johns. R. 169, it was decided that although the legal estate, according to the papers, was in one person, yet it was admissible to shew by parol, a collateral agreement that he was only a mortgagee, and, as such, not liable until he took possession ; which Chancellor Kent seems to think is the law, according to the American authorities, and is clearly the law of New York. But the parol evidence was not in this case received for that purpose, and it is not intended to express any opinion as to the correctness of the decision in that case.

In the charge of the circuit Judge, the jury were instructed that the defendants were to be regarded as the legal owners of the Hayne, and, as such, would, in general, be liable, but that circumstances might exist which would exempt them from this liability, as if the vessel was navigated by Stocker for his own exclusive benefit, and the goods were furnished on his contract, and on his individual credit. If this was correct, as I shall hereafter shew, then the facts and circumstances attending Stocker’s possession may be proved, in order to shew that the defendants were not liable. If the rule of law was inflexible, that the owners are liable at all events, then there would be some force in the objection made to the evidence received in this case, but the objection would be rather that it was irrelevant than that it violated the rule of law, that parol evidence was inadmissible to vary, or alter, a written contract. In the case of Leonard vs. Huntington, 15 Johns. R. 301, it was admitted by that learned lawyer, T. A. Emmet, that the legal owner was not liable where credit had been given to some other person, or where some act or contract could be shewn which prevents the liability of the owner.

It was for this purpose that the evidence was received in this case, to shew, as the presiding Judge says in his report, why it was that Stocker was navigating the Hayne as his own, for his own exclusive benefit, and under his own exclusive control; and as a consequence of this, he was fro hac vice the owner, and, as such, alone liable for the goods which had been furnished by the plaintiff on the contract and the individual credit of Stocker. The objection is, that the written evidence of title is contradicted by the parol, but the facts proved do not contradict the written evidence. The agreement that Stocker should retain the possession and use the ship as his own, and that, if he paid up the debts for which the defendants were liable, the Hayne should be his again (for that is the effect of the agreement) does not alter or vary the written contract, but is consistent with it. In the case of Leonard vs. Huntington, the defendant had sold the ship to Bingham, but was not to make a title until the price was paid. The plaintiffs had repaired the ship in a foreign port at the request, and, as it seemed, on the credit, of Bingham. The legal title was in the defendant, and the register stood in his name. He was allowed to prove, without objection, all the facts of the case, to shew that Bingham, and not he, was liable for the repairs. For the same reason the evidence in this case was received. I thought at the trial, and still think, it was properly received for the purpose above stated.

On the other question, whether the defendants were liable merely because they were the legal owners, little need be said. The case of Leonard vs. Huntington shews that where the work was done on the credit of another, the legal owner is not liable. In James vs. Bixhy, 11 Mass. R. 34, where repairs were done in a foreign port, on the credit and at the request of the consignee, the legal owner was held not to be liable. In that case, as in this, the bill had been rendered and notes taken from the persons with whom.the contracts had been made. But the third ground of appeal goes a little farther, and insists that the judge should have charged the jury that, if the plaintiff gave credit to the owner (whoever he might be) and, believing Stocker to be the owner, gave credit to him, still the defendants were liable as owners. I apprehend there is no ground for such a distinction in this case. The argument arises out of the manner in which the goods are charged in the plaintiff’s books, “Brig Hayne, Master and Owners,” from which it is argued that the credit was given to the owners, whoever they might be. The argument would prove that the Brig and master, as well as the owner, were liable. There was no lien on the brig and she was not liable. The goods were not furnished at the request of the master, who is liable only by reason of his contract, but on a.contract made with Stock-er himself, and therefore the master was not liable, and the cases above cited shew, that where the contract is made by another, and the goods are supplied on his credit individually, the owner is not liable. The manner in which the charges are made in the books cannot create a liability where none exists. The subsequent conduct of the plaintiff in presenting the accounts to Stocker, as debts due by j him, the taking and renewing the notes, all shew, conclu-l sively, to whom the credit was given, and that, Chancellor |_Kent says, is the proper question to be decided. This court is of opinion there was no error in the circuit court, and the motion is dismissed.

Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  