
    The Commercial National Bank of Chicago, Plaintiff, v. Carl Broedermann Sloman and Robert Edward Loesener, Defendants.
    (Supreme Court, New York Trial Term,
    February, 1907.)
    Shipping — Liabilities of vessels and owners — Contracts of master for supplies.
    Former adjudication — Causes of action barred or merged in general — Causes of action on indebtedness and on collateral security.
    Where the captain of a vessel, for the purpose of paying ship brokers the expenses for port charges, supplies and services, drew to his own order and indorsed a note payable five days after the arrival of the vessel at the port of destination, and the brokers delivered the same to plaintiff who advanced the amount thereof which was applied to the payment of such expenses, the receipts for which were sent to the owners of the vessel; in an action thereafter brought against the owners to recover the moneys advanced ■ by the plaintiffs, a judgment of the Commercial Court of Antwerp, in favor of the defendants, in an action upon the note, brought by plaintiffs against the captain of the vessel in his representative capacity and the defendants in the present action, upon the ground that the master had no authority to make the note, is not an adjudication upon the 'question of the defendants’ liability in the present action.
    ¡Motions to dismiss complaint and set aside verdict.
    Wing, Putnam & Burlington, for motions.
    Ourtis, M'allet-Prevost & Colt, opposed.
   Seabury, J.

The plaintiff in this action seeks to recover . from the defendants the sum of $8,087.23. In November, 1902, the steamship Lugano, of which the defendants were the owners, was put on berth with Baccich & Clement, ship brokers at New Orleans. The steamship Lugano was a German vessel, sailing under the German flag, and while at New Orleans loading a cargo for Antwerp incurred certain expenses and disbursements for port charges, supplies and services. On the morning of November twenty-fourth, when the steamship Lugano was about to sail, Baccich & Clement presented to the master of the vessel a statement of account, stating the details and total amount of these expenses. All of these expenses at that time remained unpaid, except some small items that did not aggregate more than $205.43, which latter amount had been advanced by Baccich & Clement. To provide for the payment of the amount due, the captain of the Lugano drew to his own order and indorsed in blank a note, which provided that “ five days after arrival (or upon collection of the freight if sooner made) of the German steamship Lugano under my command at the port of Antwerp, Belgium; or at any other which the voyage might terminate, I promise to pay to the order of myself the sum of sixteen hundred and seventy-three 10-2 pounds British sterling, in approved bankers’ demand bills, on London for value received for necessary disbursements owed by my vessel at this port.” After signing and indorsing the note in the manner indicated, it was delivered to Baccich & Clement. Baccich & Clement after receiving the note indorsed it payable to themselves, and on the same day delivered it to the representative of the Commercial National Bank of Chicago, the plaintiff in this action, from whom Baccich & Clement received $8,087.23. Out of this sum Baccich & Clement paid the expenses shown in the statement of account referred to, and their own compensation, and sent the receipts for these payments to the defendants. The plaintiff indorsed the note and sent it to the Banque Céntrale of Antwerp for collection, and the Banque Céntrale, pursuant to the plaintiff’s authority, brought suit on the note in the Commercial Court of Antwerp. The suit was brought against the captain or master of the Lugano in his representative capacity, and the defendants in this action.

The Commercial Court of Antwerp was a court of competent jurisdiction in respect to the subject-matter of the action, and rendered judgment in favor of the defendants in that action. The judgment of the Commercial Court was founded on the fact that, under the German Commercial Maritime Code, a master of a German ship has no authority in his capacity as master to make a note or draft. See § 529 of the German Commercial Maritime Code, Arnold’s Eng. trans. of the Code, at p. 14. These facts appearing without dispute upon the trial of this action, the court reserved decision upon the defendants’ motion to dismiss the complaint, directed a verdict for the plaintiff for the amount claimed and reserved decision upon the motion of the defendant to set aside the verdict.

The question to be determined here is whether the judgment of the Commercial Court of Antwerp is res ad judicata in this action. In this connection it must be borne in mind (hat the present action is to recover the moneys rvhich the defendants received through their agent from the plaintiff and is not based upon the master’s note. The test by which this question is to be determined is whether the same evidence which could have been offered in support of the previous action would maintain this action. If so, then the former judgment is a bar to the prosecution of this action; if not, then no reason exists why the plaintiff should not have judgment upon its present complaint. That this is the principal test to be applied in determining this question was early asserted and has been consistently maintained. In Snider v. Croy, 2 Johns. 227, Kent, Ch. J., held that i he test to know whether a verdict and judgment in a former action is a bar is whether the same evidence will support both actions. The courts of this State have repeatedly reasserted this rule. Stowell v. Chamberlain, 60 N. Y. 272; Belden v. State, 103 id. 1; Marsh v. Masterton, 101 id. 401. The same rule has also been declared in other jurisdictions (Rossman v. Tilleny, 80 Minn. 160; Geary v. Bangs, 138 Ill. 77; Buddress v. Schafer, 12 Wash. 310; Jones v. Fales, 4 Mass. 245, 255; Taylor v. Indiana Paper Co., 64 Ill. App. 339; Syndell v. Leggett, 1 Mo. 432), and by text-writers (2 Black Judg., §§ 723, 733; Freem. Judg., § 259).

The application of this test to the facts of the present action shows that the former judgment is not a bar. The cause of action sued upon here is not identical with the cause of action sued upon in the Belgium court, and the evidence which would support a recovery in an action for money had and received would not support an action on the note.

Although it appears that under the German law, to which the Belgium court gave effect, the master was not authorized to give the note in question, it does not necessarily follow that he was without power to borrow money at Hew Orleans as the agent of the defendants. Under the facts and circumstances shown to have existed in this case, the master had authority to bind his principals, for the money the plaintiff advanced. The Wyandotte, 136 Fed. Rep. 470; affd., 145 id. 321; McCready v. Thorn, 51 N. Y. 454; Chase v. McLean. 130 id. 529. In contracting the debts for the present and future necessary supplies of the ship and in borrowing the money to pay the debts that had been incurred and which must have been paid to enable his ship to clear the port of Hew Orleans, the master was acting within the scope of his authority. The plaintiff having advanced the money to the agent of the defendants, and the defendants having received the benefit of it, the plaintiff may recover the money notwithstanding the fact that the defendants’ agent gave the plaintiff a void note as a means of payment for such advances. By receiving the void note the plaintiff did not forfeit its right to recover upon the original debt and its delivery did not impair the defendants’ obligation to pay the debt which they had contracted. It is true that the means or method by which the defendants’ agent attempted to pay the debt was declared by the Belgium court to be illegal, but the original obligation was lawful. In Hoag v. Town of Greenwich, 133 N. Y. 152, the court, considering the case of a town sued for money borrowed for which it had illegally issued bonds, said: “We may concede that for such reason the four bonds were void as bonds, as vouchers or securities; but it does not at all follow that the loan was void, that the borrowing was unlawful, that the lender lost his money- and the town was at liberty to perpetrate a disgraceful robbery by means of the fault or mistake of its own agents. Treating the four bonds as void, we are required to dismiss them from the transaction, but not to repudiate the transaction itself. They were unlawful incidents of a perfectly lawful transaction and may be disregarded while the transaction stands.” Louisiana v. Wood, 102 U. S. 294; Bangor Sav. Bank v. City of Still-water, 49 Fed. Rep. 721.

The money advanced inured to the benefit of the defendants and there is no principle of justice which they can invoke which will justify them in withholding payment from the plaintiff who advanced the money to them. The motions to dismiss the complaint and set aside the verdict are denied.

Motions denied.  