
    Same Term.
    
      Before the same Justices.
    
    Dunham & Dimon vs. Jarvis and others.
    The plaintiffs. D. & D., entered into a contract with J. and others, the defendants, to build a ship, to run as a regular packet between New-York and Glasgow, to be built under the superintendance of C., one of the defendants, and when finished to be commanded by him, under the agency of D. & D.; D. & D. owning one quarter and the defendants owning the other three quarters, in shares. After the ship was built and had run some time as a packet, a disagreement arose between D. & D. on one side, and 0. and the other owners on the other side, which" resulted in a majority of the owners depriving D. & D. of their agency, and transferring it to another person, but continuing the vessel in the same trade and under the same master. On a complaint filed by D. & D. against the other owners, claiming that they had a lien on the freight earned in the last voyage, for their advances on account of the ship, and praying for an injunction to restrain the defendants from collecting it; that the ship might be sold and the proceeds distributed among the owners; and for an injunction to restrain the defendants from sailing the vessel in the meantime; Held that this was a parUiership between the parties, as to the vessel as well as the freight; and an order setting aside the preliminary injunction which had been issued, on condition that the defendants should give a bond for the payment to D. & D. of whatever sum might be found due to them as ship’s husbands, and another bond conditioned to account for and pay over to D. & D. their share of the earnings of the vessel pending the suit, if on the final judgment it should be determined that they were entitled to any, was affirmed.
    In such a case it is not usual or proper to grant an injunction and follow it up, as it must be, by a receivership of the partnership property; unless it is necessary for the protection of the rights of parties against some threatened or apprehended abuse.
    The plaintiffs, Dunham & Dimon, partners in trade, entered into a contract with the defendants to build a ship to run as a regular packet between New-York and Glasgow, to be built under the superintendence of Churchill, one of the defendants, and when finished to be commanded by him, under the agency of Dunham & Dimon. The plaintiffs owning one quarter, and the other three quarters being owned by the defendants, in shares of T~ or i each. After the ship was built and had run some time as a regular packet, some disagreement arose between Dunham & Dimon on one side, and Churchill and the other owners on the other side, which resulted' in the majority of the owners depriving the plaintiffs of their agency, and transferring it to another person, but continuing the vessel in the same trade and under the same master. Dunham & Dimon then filed their complaint against the other owners, claiming that they had a lien on the freight earned in the last voyage, for their advances on account of the ship, and praying an injunction restraining the defendants from collecting it; praying that the ship might be sold and the proceeds distributed among the owners, and in the meantime for an injunction restraining the defendants from sailing the vessel.
    A preliminary injunction being granted, a motion was made at special term to set it aside. An order was granted setting it aside, on condition that the defendants should give a bond with security, in the penalty of $10,000, conditioned to pay Dunham & Dimon whatever sum might be found due to, them as ship’s husbands, and a farther bond with security in the penalty of $25,000 conditioned for the safe return of the ship within the jurisdiction of this court, to abide its judgment; or, in case she was not returned, to pay to the plaintiffs the present value of their interest. And in case such bond was given, the defendants were to be at liberty to employ the ship at their own risk and expense, and for their own benefit, to the exclusion of the plaintiffs, pending the suit. From that order Dunham & Dimon appealed.
    
      Doyle and F. B. Cutting, for the plaintiffs.
    
      W. M. Evarts, contra.
   By the Court, Edmonds, P. J.

As to the freight, these parties were partners, and liable to the rule which governs this court in all cases where the partners do not agree, but one ousts the other. In such cases a receiver will be appointed, where that is necessary to the protection of the interest of the parties. Here no receivership was necessary, so long as the defendants would give, as they were required, adequate security to account for the freight. That they have done, and the plaintiffs are just as much protected as if the freight had been brought into court and put into the hands of its officer. That being the case, there was no occasion to subject tírese parties to the expense of a receivership. The plaintiffs have no absolute right to a receivership. They have a right to have their interest protected against the aggressions of their partners. That has been amply done as to the freight, and I can see no cause they have to complain on that account.

As to the vessel, the matter stands in a different light. A ship, as well as a house and lot, may be owned in partnership as well as in common; and I was inclined, on the hearing below, to regard the contract between these parties as a partnership. And I am not certain now, that it ought not so to be regarded. But looking at the matter not as a partnership, but as a tenancy in common, only, of the vessel, still I did not, nor do I now, discover any absolute right the plaintiffs have to restrain the other owners from any charge over or use of the ship, pending the dispute between them. It was not necessary for the interest of parties, or of commerce, that the vessel should lie idle, pending the suit; and she must either do so or be used by the plaintiffs if their claim was listened to. For as to the court’s running the vessel by and through its receiver, that was out of the question. And I could discern no better disposition to make of her, than to apply the admiralty rule in cases where joint owners disagree as to the use of a vessel; that is, to allow the majority of the owners to use her at their own risk, on giving security for her return to abide the judgment of the court, or for the return at least of the plaintiffs’ present interest in her. In all this the plaintiffs are still fully protected as to all their interest, except only as to their share of the profits of running the vessel pending the dispute.

As to that, it must be borne in mind, that at the special term they did not ask to participate in those profits, while the vessel should be used by the other owners; nor did they ask for leave to use her themselves. They demanded that she should be sold on a final decree, and in the mean time that the other owners should be restrained from using her. Such is the prayer of their complaint, and such was alone the consideration presented on the argument below. This did not appear to be equitable; for it seemed to me to be an attempt to use a provisional remedy, for the purpose of enforcing such judgment as they deemed themselves entitled to, before the court had an opportunity of determining whether they were entitled to it or not. Now however, on this appeal, the case for the plaintiffs is presented in a very different aspect. Now they complain that their share of the profits of using the vessel are in fact confiscated pending the litigation; and now they claim that they have a right, under the articles of agreement, to run the vessel themselves in conformity with its stipulations. I doubt their right thus to raise points on the appeal that were not raised below. It is a violation of all rule and of the- good faith that is due in such cases alike to the court and to the parties.

On neither of the points now raised did I pass any judgment below, and for the simple reason that they were not raised before me then. This ought to be a sufficient answer to the appeal. But as we have power to modify as well as reverse or affirm the order of the special term, it will be as well to look into this new view of the case, and see whether in this aspect any injustice has been done.

As to the confiscation of the plaintiffs’ share of the profits, as it is called, pending the litigation, I can only say that it was not necessary for the purposes of the motion below to decide that the plaintiffs should not share in the profits of using the vessel while she was run solely at the risk of the defendants, who were bound ultimately to bring back into the jurisdiction of the court the vessel herself, or the plaintiffs’ present interest in her. That might have been properly left for decision on the final judgment. If the vessel herself should be brought back, the defendants’ shares in her would be subject to the judgment of the court, to answer for any share of profits which the plaintiffs might be entitled to. But in case only the value of the plaintiffs’ present interest be brought back, I perceive the bond makes no provision for any such profits. That might easily have been made, if the plaintiffs had asked for it, by inserting a proper clause in the condition of the bond. And even now, the bond may be amended by inserting such a clause, in case the court shall not deem it advisable to adopt the admiralty rule in full, and refuse the plaintiffs any share in the profits, while the vessel is run at the risk of other parties; or at least to sanction it so far as to refuse to require the defendants to give security for that, leaving the plaintiffs to their appropriate remedy in that respect, in the end.

The other claim of the plaintiffs themselves to run the vessel in the particular trade for which she was built, because it was so provided in the original agreement, is liable to many objections. That agreement is clearly, in part at least, a partnership agreement, and liable to the application of the equity practice in cases of disagreement among partners. How could such a decree as the plaintiffs now ask, be enforced? One of the owners was to be master, another ship’s husband, and the others to share in the risk and expense of running the vessel as a regular packet between New-York and Glasgow. If any of them refused to perform his part, could the court compel him? Or if the other owners were dissatisfied with the master, could he compel them to let him sail her as master 1 This sort of disagreement might put an end to the connexion; but I know of no principle which would require this court to compel its continuance, and least of all, that would allow the master, in defiance of the remonstrance of all the other owners, to sail the vessel and carry on the business. Yet if the principle contended for be right, this would be the result. Suppose Churchill refuses to go as master, while the plaintiffs remain the agents; and the plaintiffs refuse to act as agents while Churchill should be master ; how is the court, preliminarily, to determine between them ? And above all, on what principle would the court be justified in taking the vessel out of the hands of the other owners and putting her entirely under the control of either one of these contending parties ? Yet that may be done, if the doctrine advanced by the plaintiffs be sound. If it might, on what ground should the plaintiffs be fav’ored, more than the master, and why might not the master be put into the entire control as well as the agents ? It would be vain to say that that would depend upon which is in the wrong, or nearest to being in the right. That is a question which can be solved only in the final judgment; and the inquiry now is, what is to be done in the meantime ?

I confess, that view the case as I may, I can see no better rule to adopt for such intermediate period than that which is established in admiralty, and which in the court below I borrowed for the purpose of doing the best justice I could between these parties; while I can readily perceive how a great deal of injustice may be done, by adopting either of the courses which the plaintiffs have successively pressed upon our consideration, viz. either to lay the ship up in idleness until the suit shall be ended, or allow the plaintiffs, a small minority of the owners, to run her in defiance of the will of a large majority.

Such is the light in which this case strikes me, if the parties are to be considered as tenants in common in the ship, and not as partners. But it seems to me that they are rather to be regarded as partners. In Doddington v. Hallet, (1 Ves. sen. 497,) there was a contract for building a ship for the service of the East India Company, and for fitting her out, managing and victualing her. This was held to be a partnership as to the ship. I am aware that in Ex parte Young, (2 Ves. & Beame, 242,) Lord Eldon overruled that case, and that our chancellor, in Nicoll v. Mumford, (4 John. Ch. R. 525,) regarded it as a case which had never had effect, and had been authoritatively exploded. But when this last case was before our court for the correction of errors, on appeal from the chancellor’s decision, in 20 John. Rep. 635, Ch. J. Spencer, who delivered the prevailing opinion, expressly reasserted the doctrine of Lord Hardwicke in 1 Ves. sen. and as it had been held by Lord Mansfield in Smith v. De Sylva, (Cowp. 469,) and applied it to a case where the parties were joint owners of ship and cargo, which they had sent on a trading voyage, on joint account. He held that they were partners, and on that ground our court of last resort decided that case. So that I am constrained to regard that as the settled rule in this state. Upon that principle this was a partnership between these parties as to vessel as well as freight. In such case it is not usual or proper to grant an injunction and follow it up, as it must be, by a receivership of the partnership property, unless it should be necessary for the protection of the rights of parties against some threatened or apprehended abuse. For such protection the bond required by the order of the special term was amply sufficient. No abuse has been suggested that could not be amply compensated in damages, and as amply covered by the security exacted.

In every aspect then, of the case, the order below was unexceptionable, except as it attempted to pass on the question whether the plaintiffs would be entitled to share in the profits of employing the vessel pending the suit. That ought to have been avoided. And, to do that, the bond for $25,000 must be amended, by inserting a condition to account for and pay over the plaintiffs’ share of such profits, if on the final judgment it shall be determined that they are entitled to any. Unless such amended bond be filed in twenty days, the injunction'will be revived. The costs of this appeal to abide the event of the suit.  