
    [Philadelphia, May 5, 1838.]
    COE against COOK.
    1. A charter party entered into between the owners of the ship of the one part, and A. and B. of the other part, witnessed, that the owners agreed to send the ship on the voyage, and A. and B. agreed to go as supercargoes, and charter or freight 540 tons of the said ship, at a certain price per ton, “that is,” A. agreed to freight 375 tons, and B. agreed to freight 165 tons. The defendant contracted with A. for the freight of certain goods for him, which freight was paid by A. to the owners: Held, that A. and B. were not joint contractors or partners, in respect to the freight; that the action was properly brought by A. alone, and that B. was a competent witness for him.'
    2. In assumpsit to recover the freight of certain goods belonging to the defendant, it appeared that the plaintiff had hired a certain portion of the vessel for the voyage, by a charter party under seal, which was executed by one of the owners of the vessel, who were partners, in the partnership name, with one seal. The full amount of freight due to the owners was afterwards paid to them by the plaintiff, and they gave him a receipt. Held, that the charter party was admissible in evidence, and that it was not a valid objection to its admission or to the plaintiff’s recovery, that it was executed by one partner in the partnership name.
    This was an action of indebitatus assumpsit, brought by Richard Coe against William Wallace Cook, to recover for the carriage and conveyance of certain goods belonging to the plaintiff, on board of the Ship Globe, on a voyage from Canton to Philadelphia.
    On the trial before Kennedy, J., at a Nisi Prius held in Philadelphia on the 15th of March, 1837, the plaintiff gave in evidence an agreement of charter party or affreightment, entered into on the 16th of May, 1831, between Messrs. Eyre & Massey, owners of the Ship Globe, of the one part, and Richard Coe (the plaintiff,) and Edwin M. Lewis, of the other part, by which Eyre & Massey agreed to send their Ship Globe from Philadelphia to Canton and back, properly manned and fitted. The following stipulations were contained in this instrument. ,
    *“The said R. Coe and E. M. Lewis, agree to go as on board of said and charter or freight five hundred and forty tons of said ship, at $40 per ton of forty cubic feet of measurement, payable to said Eyre & Massey in approved endorsed notes, at 60 days from the day of the arrival of said ship at Philadelphia. That is, the said R. Coe agrees to freight three hundred and seventy-five tons, and the said Edwin M. Lewis agrees to freight one hundred and sixty-five tons, making together five hundred and forty tons.
    • Eyre & Massey to furnish the cabin stores and provisions, and to pay the expenses of the factory and ship at Canton, as is customary on such voyages. They also agree to ship $60,000 on joint account of themselves and their friends, or allow the supercargoes a commission of three per cent, in China on that sum; that is to say, the said supercargoes are to be allowed by Eyre & Massey the sum of $1800, as a full compensation for all their services as supercargoes, for the transaction of all business of said ship, of the goods or specie shipped by Eyre & Massey for their account dr for that of their friends, provided the sum does not exceed $60,000. Should it exceed that sum, three per cent, is to be allowed on such excess.
    Goods shipped by the supercargoes or their shippers at Philadelphia, to be free of freight outwards, provided the same does not exceed one hundred and fifty tons weight.
    The parties agree not to engage any freight in Philadelphia, at a less rate than $40 per ton; and should they have any tonnage to dispose of at Canton, the supercargoes are to dispose of it at the best rate they can, and in such manner that it shall operate upon just and fair principles, in proportion to the quantity that each may have to sell.
    Each supercargo to have a state-room to sleep in, and for his accommodation: and twelve tons of forty cubic feet measurement under dock to be allowed as the full privilege of both supercargoes.
    Young hyson, hyson, &c., with or without straps, to be estimated at ten chests to the ton.
    All other merchandise the actual measurement.”
    The defendant’s counsel objected to the admission of this charter party in evidence, but the objection was overruled.
    Certain letters from the defendant to the plaintiff, dated in May and August 1831, containing directions respecting the purchase of goods for him, and their shipment, were put in on the part of the plaintiff.
    The plaintiff also gave in evidence the outward bill of lading, dated 21st of May, 1831; as follows.
    “Shipped, &c. by W. Wallace Cook, in Ship Globe, bound for Canton, &c. to be delivered at Canton unto Mr. R. Coe, supercargo *on board, or to his assigns, he or they paying freight — out nothing, and home at the rate of $40 per ton measurement.”
    The homeward bill of lading, dated the 11th of June, 1832.
    “ Shipped by R. Coe, in the Globe, now in Canton, and bound for Philadelphia, &c. to be delivered at the port of Philadelphia, unto order or to his assigns. As per agreement.”
    The following certificate and receipt,
    “ Phil. 30th Jan. 1834.
    “We certify that we have no claim on John Cook, or Mr. W. W. Cook, for freight, on board the ship Globe, from Canton to Philadelphia, in the year 1832, having received the freight of their goods from R. Coe, in his settlement with us for the tonnage taken by him under the charter party.
    Eyre & Massey.” •
    “ Received, Philadelphia, July 27, 1832, from R. Coe, $791 38, amount of the freight of goods consigned to W. Wallace Cook, in the Ship Globe, from Canton, as per charter party and agreement.
    Eyre & Massey.”
    Edwin M. Lewis was then offered as a witness on the part of the plaintiff to prove the measurement of the goods, and their delivery in Philadelphia to the defendant. The defendant objected to his competency, but the objection was overruled, and the witness admitted.
    The defendant on his part gave in evidence an order from Eyre & Massey to the defendant, dated the 30th of July, 1832, to pay to the plaintiff the amount of his bill, of freight, “he having settled with us the freight, according to the charter party.”
    The plaintiff then gave in evidence the original entry by the defendant under oath, dated the 28th of May, 1832, at the custom house.
    The defendant requested the Court to charge—
    “ 1. That there was no contract whatever on the evidence, expect with Eyre & Massey.
    2. If any contract did arise, it was not for carriage of goods, but for other matters to be enforced in another form of action. And that if .Coe had any remedy against Cook, it would be for money paid, laid out and expended.”
    His honour, however, thought the plaintiff entitled to recover, and so charged the jury, who found a verdict for the plaintiff.
    ’ *The defendant moved for a new trial, and filed the following reasons.
    “ 1. Because the judge permitted the contract between Eyre & Massey of the one part, and Coe and Lewis of the other part, dated May 16th, 1831, to be given in evidence, though it was a paper under seal, and executed by Charles Massey; the presence or assent of Eyre not being proved.
    2. Because the judge permitted Edwin N. Lewis, one of the contractors to be examined as a witness to support the claim of the plaintiff, when in fact he should have been one of the plaintiffs, if any one but Eyre & Massey could sustain an action against the defendant for freight.
    3. Because the judge charged the jury, that a contract to carry the defendant’s goods by Coe was proved by the evidence and testimony in the cause, and that Coe had a right of action against him founded upon such contract.
    4. Because the judge refused to charge the jury, that the only contract to carry the defendant’s goods arose between Eyre & Massey and the defendant upon the bill of lading, signed by the captain of the Globe.
    5. Because the judge refused to charge the jury, that no action could be sustained except an action for money paid for the use of Cook, and that only in case the money was paid with his consent, express or implied, and not against it.
    6. Because the verdict should have been for the defendant.”
    
      Mr. Ingraham for the motion,
    cited Harrison v. Jackson, (7 Term Rep. 307); Gow on Partnership, 58, (ed. 1837); Hart v. Withers, (1 Penn. Rep. 285).
    Mr. W. B. Heed and Mr. Law, contra,
    
    cited Darst v. Roth, (4 Wash. C. C. Rep. 471); Fichthorne v. Boyer, (5 Watt, 161); Grant v. Seaton, (1 Hall’s N. Y. Rep. 262); Mackie v. Bloodgood, (9 Johns. Rep. 285); Holt on Shipping, 195 ; Newberry v. Colvin, (7 Ring. 190; s. c. 20 Eng. Com. Law Rep. 95); Perry v. Osborn, (5 Picker. 422); Cutler v. Winsor, (6 Picker. 335); Thompson v. Hamilton, (12 Picker. 425); Blair v. Hume, (2 Rawle, 104); Charles v. Scott, (1 Serg. & Rawle, 294); Mehaffy v. Share, (2 Penn. Rep. 378); Potter v. Yale College, (8 Conn. Rep. 52); Williams v. Millington, (1 H. Black. 81); Rawlston v. Cummins, (2 Yeates, 436); Chitty on Contracts, p. 3, &c.
   The opinion of the Court was delivered hy

Gibson, C. J.

The objections to the verdict, depend on the nature *of the original contract of affreightment. Coe and Lewis undoubtedly chartered their part of the Globe’s tonnage — 540 tons — jointly; and they were jointly liable for it to the owners; but were they joint owners of it betwixt themselves? Their property in it was severed in all respects but liability to the owners for it, by an express clause in the charter party, containing an agreement of Coe to freight 375 tons, and of Lewis to freight the residue. There may be a partnership which is to cease with the act of purchase, the thing bought being divided by the act which vests the title; for a clause in a contract of purchase, that an exclusive property in the casks or packages should vest in the one or the other, according to mark or brand, would undoubtedly sever the ownership.; — and why should it not sever the ownership of freight purchased on the same terms ? Coe and Lewis, therefore, stood in no joint relation but that of liability. They were tenants in common of an undivided portion of the ship; and their interests being several, might be disposed of in severalty. ■ Lewis was competent, therefore, to prove the defendant’s contract to have been with Coe. The original charter party, in the name of the firm, was sealed only by one of the' owners, and it is certain that an action on it could have been maintained only against Mm who sealed it. But this action is not founded on it. It is brought for the price of the freight sold by the plaintiff to the defendant, and the instrument is no further material than as it affords evidence of the ownership of the freight. But the contract of affreightment need not be by specialty; and subsequent assent to it by a party not originally bound, would make it a valid contract by parol, which is all that is necessary to show the ownership of the freight to have been in the plaintiff. Now, the receipt of its price by the owners, is a full ratification of the original agreement; and there was therefore no contract to carry the defendant’s goods by the owners of the ship, but a contract to carry by the plaintiff, on which this action may well be maintained. Consequently, there is no reason to disturb the verdict.

Judgment for the plaintiff.

Cited by Counsel, 3 Barr, 359.  