
    
      Thomas Cordray vs. M. C. Mordecai.
    
    Where a vessel is under the entire control and is navigated for the exclusive benefit of the mortgagor, the mortgagee, although the legal owner, is not liable for repairs made on_the credit^f the mortgagor alone.
    Where the mortgagee is sought to he charged as owner for repairs, he may give in evidence his private transactions or course of business in reference to the vessel, in order to shew that'the vessel was not under his control or navigated for his benefit, and that his connection with her was that of agent or consignee.
    Where two instruments of writing relating to the same matter, are written at the same time and on the same piece of paper, if one is offered in evidence against a party, he has a right to insist that the other shall be considered as evidence also.
    
      Tried in the City Court of Charleston, July Term, 1845.
    The report of his Honor the Recorder, is as follows.
    “ This was an action of assumpsit for work and labor alleged to have been bes^pwed upon the Brig Howell, and for materials furnished by the plaintiff, at the instance and request of the defendant. The account filed with the declaration, was against the Brig Howell, Captain Morris, charging a certain number of days work, and some materials furnished, amounting in all to the sum of $378 68, with a credit at the foot of the account, by cash received at sundry times, amounting to $175, leaving a balance due of $203 68. The account bore date the 9th of November, 1842. The testimony was as follows :
    
      '■'■Henry Martin proved the account; the vessel was repaired at Marsh’s wharf; saw Mordecai there once or twice, soon after the vessel came there; he, (Mordecai,) was talking with the Captain. When repaired, the vessel was canied down to a wharf near vendue range, and near Mordecai’s counting-house, where she was taking a load ; saw Mordecai there ; never saw Mordecai take any direction or control over the vessel; does not know of any contract being made ; the Captain (Morris) was there giving directions, and was in a hurry to get the job finished.
    <£ William Boucheneau is a clerk in the custom-house in Charleston ; produced in court the registry of the Brig Howell, -which the plaintiff offered as evidence of the ownership of Mordecai of the Brig Howell; the registry bore date the 5th of October,-1842, and recites in it a declaration, purporting to be that of Mordecai, the defendant, on oath, as sole owner of the Brig Howell ; from the same book. it appeared that the Brig Howell was subsequently, and on the 13th of April, 1843, registered in the name of John S. Jones, as owner. The witness said that the oaths spoken of in the certificate are administered by him; that in these cases the oath may be taken by the party in whose name the vessel is registered as owner, or by the captain or agent. Witness cannot say whether the parties or the agents took the oath in these cases, nor whether the certificate of Mordecai was obtained by him or the captain ; had no doubt, however, that Mordecai knew of the register in his name.
    
      “ Mr. Pezant said he knew the Brig Howell; she formerly belonged to his brother; witness was there when Cord ray was at work; he saw'Mordecai there, apparently looking on as any other owner ; did not hear him give any direction ; witness proved the signature of Morris to the bill, certified by him to be correct, — (bill produced in court.) Morris was the Captain; the object of Morris’ signature was to recognize or vouch the bill ; witness saw Mordecai there but once.
    “ John E. Cay said he knows the Brig Howell; she formerly belonged to Mr. Pezant; she was sold for two notes ; Morris was the drawer; Mordecai the indorser ; the titles were made to Mordecai ; the vessel was under the management of Mordecai after the purchase, as merchant ; that Mr. Pezant bargained for the sale of the Brig with Morris.
    “ Cross-examined, — Captain Morris called to treat for the Brig on his own account; Morris drew the notes, and Mordecai indorsed them; the title was taken by Mordecai himself; it was generally reputed to be Morris’ vessel; the Brig was bought to give Captain Morris a chance to obtain a livelihood; never saw Mordecai exercise any other acts than an agent or consignee usually exercises.
    
      “ For the defendant. I. E. Hertz is a clerk of Morde-cai^ and book-keeper ; all accounts are presented to witness for payment. This account was never presented ; no account was ever rendered to Mordecai against the Brig Howell; he never paid a bill against her ; tHe notes for the purchasing of the brig were drawn by Morris, and indorsed by Mordecai. Mordecai charged a commission for indorsement and for doing the business. Morris paid the balance of Mordecai’s account, complaining that he charged too high for the business, and that he must get it done cheaper ; and by his directions the vessel was transfered to John S. Jones. Morris is dead ; he was lost at sea in September, 1843. Mordecai never, to his knowledge, contracted for any repairs or supplies to the vessel; she underwent large repairs.
    
      “ William, Tharin is out-door clerk of Mordecai, and attends to the custom-house business; knows of no account being presented against Mordecai for the Brig Howell; the title was taken in Mordecai’s name to secure him for liability as indorser ; Mordecai never derived any benefit but as the agent for doing business. Morris complained of Mordecai’s charges, and changed his business ; no account was kept of profits. He was instructed by Mordecai to take out the title at the custom-house; thinks Mordecai took the oath, is not certain he did not.
    I “ Mr. J W. Cleapor was working on the Brig Howell in September, 1842, at the same time as Cordray. Morris 1 paid witness’ account at different times, as he made money ^ by the voyages of the vessel. Mordecai did not order the work or give any directions.
    >. “ Mr. Phinney has furnished supplies for the Brig f Howell; regarded Captain Morris as the owner ; he paid witness’ account; witness first sent his bill to Mordecai, l who sent it back.
    « “Mr. Jeffords worked on the Brig Howell in 1842. Capt. Morris contracted ,with him; receipts were taken as received of Capt. Morris, on account of Brig Howell ; received payments from Morris ; a balance was left, which was purchased by John S. Jones, at a discount; if he had considered Mordecai liable, he would not have sold it at a discount.
    “ The defendant’s counsel here produced, in pursuance of a notice served on him or the defendant, a certain memorandum in writing, of an agreement between John S. Jones and himself, dated the 12th of April 1842, to which, on the same paper, there was another written memorandum or order on the same subject, bearing the same date, and also attested by the same subscribing witness, signed by Capf. Morris; and the plaintiff’s counsel insisted that the first paper should go to the jury without the other accompanying it; I ruled that it must all go together, or not at all, and upon this decision the whole paper was introduced in evidence. The original will be produced on the argument, but I submit the following copy, for the better understanding of the views taken by the court of the evidence.
    “ ‘This is to certify, that I agree to, and do bind myself to hold harmless Mr. M. C. Mordecai against any claim that may come or appear against the Brig Howell, Capt. R. L. Morris, since the purchase of said Brig from J. L. Pe-zant & Co. to the present time. Charleston, S. C. April 12th, 1843.
    John S. Jones.
    Witness, Is. Eger Hertz.
    
    “ ‘Mr. M. 0. Mordecai,
    
      Dear Sir, — Having settled with you for your demands against me, you will be pleased to make a bill of sale to Mr. John S. Jones, of the Brig Howell, in same manner as you received it from Messrs. J. L. Pezant & Co. Charleston, April 12th,1843.
    R. L. Morris.’
    Witness, Is. Eger Hertz.
    
    “ Here the testimony closed, and the case was argued very fnlly and elaborately by the counsel respectively. The plaintiff’s counsel contended that the defendant, Mor-deeai, was to be regarded as the exclusive legal owner of the brig, and as such was necessarily liable in that capacity por work done upon the same ; the defendant’s counsel contended, on the other side, that Mordecai was only to be regarded as a mortgagee, not in possession, and as such that he was not liable for repairs done to the brig, unless by his express directions ; and that in this case the whole credit was evidently given to Capt. Morris, and not to Mordecai, and that the defendant was therefore not liable.
    
      “ In my charge to the jury, I directed their attention in the first place to the question whether, under the evidence, Mordecai, the defendant, was to be regarded as occupying the position of the exclusive and legal owner of the Howell, and therefore, necessarily, liable as such on the contract made for repairs in this case, or whether he should not rather be regarded in the light of a mortgagee not in possession as- such, or as a trustee for Morris, the real and beneficial owner. I instructed them that the fact of the register of the vessel in the defendant’s name as owner, though prima facie and presumptive evidence of ownership, was by no means conclusive, and was open to explanation, and that if from the testimony of the witnesses, especially that of Mr. Cay the plaintiff’s witness, connected with the written agreement between the defendant and Jones and Morris, the vessel was beneficially the property of Morris, held and used for his benefit as owner, and without any interest in or participation in the profits on the part of Mordecai; that notwithstanding the legal title might have been in Mordecai, he was to be regarded rather in the light of a mortgagee or trustee ; and that for the purposes of this case, Morris was to be considered as occupying the position and incurring the responsibilities of the legal owner. That although there might be some conflict in the authorities as to the liability of a mortgagee not in possession, I thought the better opinion to be, that a mortgagee not in possession, and not participating in the use or profits of the vessel, was not liable for necessaries furnished, or repairs done upon the brig, while so employed, without his express contract, or strong circumstances to shew that they were supplied on his credit. I thought, and so instructed the jury in this case, that in my judgment the whole case depended upon the fact, to whom the credit was given by the plaintiff in doing the work ; and that if jt they were satisfied upon the evidence, that the credii_was i given exclusively to Capt. Morris, that the defendant Mor- J decai was not liable. In this aspect of the case, I called the attention of the jury to the evidence of the defendant’s clerks, shewing the real position that Mordecai occupied in relation to the vessel — that of an agent merely — having no interest or participation in the profits of the brig; the negative facts that he never had paid any bills for repairs ; that this bill, although having a balance due for the work, as far back as November, 1842, with credits previously re- J ceived at sundry times to the amount of $175, so far as j there was any evidence had never been presented to the / defendant for payment, and no demand made until this ) suit; Morris having been lost at sea in September, 1843. { That if upon this and all the evidence they came to the conclusion that credit was given to Morris exclusively, they would be bound to find a verdict for the defendant.
    “ The jury found a verdict for the defendant, and I have received the annexed notice of appeal. The grounds taken assume the court to have laid down positions, in a manner and to an extent which does not correspond with the recollection of the Judge ; and on the argument should be made conformable to the above statement of my charge to the jury. I find in Kent’s Com. 3d vol. p. 133, “ the ownership in relation to this subject (that of repairs) is not . determined by the register, and the true question in matters relative to repairs is upon whose credit was the work done.” Again, “ the weight of our American decisions has been in favor of the position, that a mortgagee of a ship out of possession, is not liable for repairs or necessaries procured on the order of the master, and not upon the particular credit of the mortgagee, who was not in the receipt of the freight.” p. 134. The case from 2 Hall’s Rep. p. 1, Ring & McNamara vs. Franklin, furnishes, in the judgment of the court, strong authority for the view taken of the questions involved upon the trial of this case. Many authorities are also collected by Chancellor Kent upon the point, and to be found at pp. 133-34, in his 3d vol. of the Commentaries.”
    
      The plaintiff appealed, and now moved for a new trial, on the following grounds :
    1. Because his Honor the Recorder erred in permitting private transactions, carried on and confined to the defendant’s counting-house, to which the plaintiff nor the public was privy, between M. G. Mordecai, the defendant, and R. L. Morris, the captain of the Brig Howell, to establish the fact that M. C. Mordecai was not the owner of the vessel; and then charging the jury, that was evidence to establish. the defence that the defendant was only a mortgagee, and not liable, as owner of the vessel, to the plaintiff.
    2. Because his Honor erred in charging that there was no evidence to prove the defendant’s liability to the plaintiff, whereas, it is submitted that the registry of the vessel in the custom-house boohs, and the title being in M. G. Mordecai’s name, and his acting for the vessel, although only as agent or consignee, was enough to establish his ownership of the vessel; and then the law raised the implied contract, which fixed his liability to the plaintiff.
    3. Because his Honor erred in ruling that the agreement or guarantee from John S. Jones to M. G. Mordecai, should not be given’in evidence, unless a letter, written on the same sheet of paper, and bearing the same date as that of the agreement, should be also given in evidence.
    
      Phillips, for the motion.
    
      Porter & F. D. Richardson, contra.
   Curia, per Frost, J.

The first ground of appeal objects to the admission of proof of the defendant’s transactions or course of business in reference to the brig, to shew that he acted only as consignee or agent, because such transactions were, in some degree, private, and should not affect with notice, persons dealing with the defendant. Such proof furnished the most certain evidence of the character in which the defendant acted, in connection with Morris and the brig. The effect of it to discharge the defendant from liability as owner, it was for the jury to determine.

The position taken in the second ground of appeal, has been ruled against the appellant at this term, in the case of Jones vs. Blum & Cobia. In that case, Stocker had transferred, by bill of sale, a brig to the defendants, who were entered in the register as owners. Proof was received that'the brig was navigated for the benefit of Stocker, and that he had possession, by his exclusive employment of it and receipt of the freights, and that the supplies were furnished on his credit. The presiding Judge instructed the jury, that though in general the owner or person who has the legal title is liable for supplies furnished to his ship, .yet, when it is proved that the legal owner had no interest in the freights, but that the vessel 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; and that the true question in the case was, to whom was the credit given 1 These instructions were affirmed on appeal. In this case, precisely the same questions arose, whether the proof of the transfer of the brig to the defendant shewed an unconditional title as owner, or merely as mortgagee; if the defendant was mortgagee, then, whether Morris, the mortgagor, was in possession, by the navigation of the vessel under his entire control and for his exclusive benefit, without any participation by the defendant in the profits ; and whether the repairs were made on the credit of Morris or the defendant. On the evidence affecting these questions and the defendant’s liability, the instructions of the Recorder are in entire accordance with the law affirmed in Jones vs. Blum & Cobia.

The third exception is, that when, pursuant to notice, the defendant produced an agreement between himself and Jones, by which Jones guarantied the defendant against any claim which might be brought against the brig, from the time of sale by Pezant to the purchase by Jones, the Recorder ruled, that an order from Morris to the defendant, to make a bill of sale of the brig to Jones, should also be read. Both instruments bore the same date, were executed in the presence of the same witness, and written on one piece of paper. From the guaranty, the plaintiff would have implied an admission by the defendant of his liability as owner. The order negatives that admission, by shewing that Morris claimed to be the owner, and the defendant acknowledged his claim. If what is contained in these papers had been expressed in ■ conversation, no question could be made that the whole conversation should have been given in evidence.

In general, the same rule applies to written as to oral admissions. Both papers together shew that Morris was the owner and vendor, Jones the purchaser, and the defendant an intermediate party, who held the legal title. In the arrangement for completing the sale, these instruments were executed. In this connection, they negative the implication of the defendant’s ownership of the brig, and shew that the guaranty was taken as a prudent security against demands to which the defendant’s possession of the legal title might subject him. Motion refused.

Richardson, O’Neall, Evans and Butler, JJ. concurred.  