
    James W. Chase, Resp’t, v. Sarah C. McLean et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 26, 1892.)
    
    1. Vessels—Money borrowed by ship’s husband—When owner liable for.
    A part owner of a vessel is not legally responsible for the payment of money borrowed by a ship’s husband to pay a prior indebtedness, although contracted for the benefit of the vessel.
    
      2. Same.
    The implied agency of the ship’s husband has only to do with the present or future use of the ship. It is based on present and pressing necessity, occasioned by the damages of navigation with a vessel out of repair, improperly rigged and inadequately provisioned.
    Appeal from a judgment of the general term of the supreme court, second judicial department, affirming a judgment of the supreme court, entered on a verdict of a jury.
    This action was brought by plaintiff, the former master of the bark “ Commerce,” to recover $449.
    The complaint alleged that both defendants owned the ship, the defendant David being also ship’s husband; that in such capacity, David, with the knowledge and consent, and by the authority of the defendant Sarah, contracted bills for, and on account; of said bark; borrowed moneys for the payment of bills, and disbursed moneys in satisfaction thereof; that on the 24th day of December, 1887, the plaintiff lent to the defendants, at their request through said David W. McLean as agent and ship’s husband aforesaid, the sum of $449.95, to be used and applied in paying bills and expenses of .the said bark “ Commerce.”
    The answer of the defendant Sarah was a general denial. But the answer of the defendant David alleged that he was both owner and ship’s husband and denied that the defendant Sarah was an owner of the vessel, or of any interest therein. He admitted the receipt from the plaintiff of the sum of money alleged in the complaint, but denied that it was conditioned that it should be repaid as stated in the complaint, and alleged that it was only to be repaid in the event that there should be found such a sum due to the plaintiff after the examination of his accounts.
    It appeared on the trial that the plaintiff had been the master of the bark “ Commerce ” from August, 1883, until December, 1887. In the latter month, he collected the sum of $800 belonging to the vessel and, exercising a captain’s prerogative, applied it in payment of wages then due. The defendant David, whom the evidence tended to show was the ship’s husband, stated to plaintiff that he wanted some of the money to pay the ship’s disbursements. The plaintiff let him have $449, with the understanding that his wife, the defendant Sarah, or her father, Peter S. Parker, was to sign two notes which he took for the loan.
    The defendant David brought to plaintiff the notes bearing the . endorsement, “ J. S. Parker.” and declared that it was the signature of Peter S. Parker. The plaintiff accepted it as such. It turned out that J. S. Parker was a man without means.
    This action was brought on the notes, but against the defendants as alleged owners of the bark “Commerce,” on the ground that the moneys were loaned for the use of the bark, and the notes were produced on the trial and an offer of their surrender for cancellation made. There was some controvery as to whether the loan was made as claimed by the plaintiff. The defendant Sarah C. McLean also denied being a ¡Dart owner of the bark.
    These two questions of fact were submitted to the jury, the court having denied the motion to dismiss the complaint, “on the stipulation that in case the jury find a verdict for the plaintiff I may reserve the case for further consideration of the law; and in case I come to the conclusion that defendant is right, and plaintiff wrong upon it, then I may render judgment for the defandant, notwithstanding a verdict.”
    In his instruction to the jury the court directed that if they found the loan was made, and that Sarah McLean was the owner of 127-128ths of the vessel, then to render a general verdict against both defendants. The jury having rendered a verdict in favor of the plaintiff, and against both defendants, their counsel moved for judgment notwithstanding a verdict under the stipulation.
    The court in denying the motion said : “ The question of law in this case is on the border line. But inasmuch as the jury has found for the plaintiff, the defendant ought to bear the onus of appeal.”
    Other facts appear in/the opinion.
    
      William H. Arnoux, for app’lts ; Thomas J. Bitch, Jr., for resp’t.
    
      
       Reversing 30 St. Rep., 159.
    
   Parker, J.

The money was not borrowed for the purpose of providing a proper outfit for the vessel, to make repairs, nor to do other necessary things for an immediate voyage; she was out of commission and the plaintiff who had been her captain for three years had terminated that relation. It was used in paying a debt contracted about three years prior with David W. McLean's sons, for chandlery goods, and ship supplies, furnished to the bark “ Commerce.”

The question presented is whether a part owner of a vessel is legally responsible for the payment of money borrowed by a ship’s husband to pay a prior indebtedness, although contracted for the benefit of the vessel ? It is raised by exceptions taken to the refusal to dismiss the complaint, and to the direction of the judge to the jury that Mrs. McLean was liable if a part owner.

The powers of a ship’s husband are determined mainly by usage, and are defined in McCready v. Thorn, 51 N. Y., 457-458, as follows: “ To provide for the complete seaworthiness of the ship; to see that she had on board all necessary and proper papers; to make contracts for freight, to collect the freight, and to enter into proper charter parties; to direct the repairs, appoint the officers and mariners; to see that the vessel is furnished with provisions and stores, and generally to conduct all the affairs and arrangements for the due employment of the ship in commerce and navigation, and for all such purposes he is the agent of the owners and can bind them by his contracts.” See, also, 1 Bell’s Com.'(5th ed.), 504; 1 Parsons on Shipping & Adm., 109 ; Story on Part., § 418; 1 Parsons Mar. Law, 98.

It will be observed that these duties have reference to the future employment of the ship and her preparation for it.

Mr. Bell, in treating of the limitations of the power of a ship's husband, says:

“ (1) That without special powers he cannot borrow money geiier ally for the use of the ship, though he may settle the accounts of the creditors for furnishings or grant bills for them, which will form debts against the concern whether he has funds in his hands or not with which he might have paid them.
“(2) That although he may, in the general case, levy the freight, which is by the bill of lading payable on the delivery of the goods, it would seerh that he will not have power to take bills for the freight and give up the possession and lien over the cargo unless it has. been so settled by charter party, or unless he has special authority to give such indulgence.
“(3) That, under general authority as ship’s husband, he has no power to insure or to bind the owners for premiums; this requiring a special authority.
(4) That, as the power of the master to enter into contracts of affreightment is superseded in the port of the owners, so it is by the presence of the ship’s husband, or the knowledge of the contracting parties that a ship’s husband has been appointed.” 1 Bell’s Comm., 504, 505, 5th ed.

The courts have modified in some respects the limitations formerly existing, and necessarily correspondingly enlarged the powers of the ship’s husband.

In this state it has been held that a master has power to contract for repairs, even in a home port, if they were absolutely necessary. Provost v. Patchin, 9 N. Y., 235.

While formerly he was not permitted to borrow money, the rule was first so modified as to authorize Iho "borrowing of money in foreign ports in case of necessity, and afterwards so as to include home ports, if the owner could not be communicated with, and the money was required immediately and for a specific pose. Rocher v. Busher, 1 Starkie, 23; Palmer v. Gooch, 2 id., 377-548; Johns v. Simons, 42 Eug. C. L., 743; Edwards v. Havill, 78 id., 106; Stearns v. Noe, 12 Gray, 482.

And in McOready's case, supra, relied on by the court below in affirming the judgment, the rule was further extended, so as to permit the borrowing of money to pay for such supplies as the ship's husband would have authority to purchase on credit. In that case the ship’s husband, as such, had authority to purchase the articles, to pay for which he borrowed the necessary amount of money. And to the inquiry upon what principle is the one credit within, and the other without, the implied authority of the agent, the learned judge responds none, except that suggested by the authorities, that the agent may dissipate and misappropriate the money. And this objection he guards against, by so qualifying the rule laid down by the court permitting the ship’s husband to borrow money to pay for articles whenever the circumstances would permit him to purchase such articles on the credit of the owners, as to burden the lender with proving as a condition of recovery that the money was not only borrowed for a proper purpose connected with the ship, or her navigation, but that it was actually applied to such purpose.

Our attention has not been called to any other case which goes quite so far in support of the authority of a ship’s husband to borrow money, and while we fully approve of the decision made, we do not regard it as applicable here.

The implied agency of the ship’s husband has only to do with the present or future use of the ship. It is based on present and pressing necessity, occasioned by the dangers of navigation with a vessel out of repair, improperly rigged and inadequately provisioned.

Now, this transaction, assuming as we must, in view of the finding of the jury, the plaintiff’s version of it, had not to do with the then necessities of the vessel, or its preparation for a voyage, for it was out of commission. If the ship’s master had asserted otherwise, within the rule laid down in McCready's case, the plaintiff would have been obliged to prove its application to such purpose.

But he did not claim that it was to be so applied and in fact it was used to pay an old debt, of several years’ standing. For such a purpose a ship’s master has no authority to borrow money at the charge of the owners.

On this appeal the respondent calls our attention to the evidence of Sarah 0. McLean, which he claims conferred on David W. McLean special powers in addition to the implied authority belonging to him as ship’s master.

Had the pleadings presented such an issue, the testimony to which he refers, considered in connection with the other evidence in the case, might have presented a question in that regard for the jury. But no such claim was made in the complaint; the cause was not tried on that theory; nor was any such question presented to the jury, or a request to that effect made.

It cannot, therefore, be made available to the plaintiff here.

The judgment should be reversed.

Judgment reversed and new trial granted, oosts to abide the event

All concur, except Haight, J., absent.  