
    Catharine Jenkins, Administratrix, etc., Appellant, v. David E. Wheeler, Respondent.
    Mortgage of a vessel, by nominal owner, as security for moneys loaned to the reed owner, without any covenant or. agreement by the mortgagor to pay the same.
    Upon failure to recover upon the mortgage, by reason of the loss of the vessel, in an action against the mortgagor to recover from him the sum loaned, held, that he was not liable, it appearing that the moneys had not been loaned to him nor for his benefit.
    
      C. N. Black, for the appellant.
    
      J. W. Edmonds, for the respondent.
   Davies, Ch. J.

The complaint avers that Oliver D. Jenkins, the plaintiff’s intestate, on the 8th of February, 1853, loaned to the defendant the sum of $2,000, and, as a security therefor, the defendant executed to him a mortgage on five-eighths of the bark Peytona, then lying in the port of Dew York. That, at the time said loan was made, and as a condition for loaning the same, the defendant agreed to obtain an insurance on said five-eighths of said bark in the sum of $2,500, for the benefit of the plaintiff, and payable to or to be assigned to him. That afterward the vessel sailed from Dew York, and on the 16th of August, 1863, was damaged and found unseaworthy, and was abandoned to the underwriters ; and that, as plaintiff believes, large sums of money had been collected by the defendant for insurance affected by said defendant upon said bark. That plaintiff had demanded said policies of insurance from said defendant, which he wholly neglects to deliver to him. Plaintiff avers that he would not have loaned the said sum of $2,000, except upon the promise of said defendant to effect said insurance. Plaintiff says, that, in consequence of the defendant failing, neglecting and refusing to deliver said policies of insurance to the plaintiff, or to account to him as aforesaid, he had sustained damage to the amount of $2,000, and interest from February 8,1853. Wherefore said plaintiff demanded judgment for said sum and interest.

Defendant, by his answer, denied that said Jenkins loaned him $2,000 on said 5th day of February, 1853. The defendant admits that he executed a mortgage to the said plaintiff, but denies that the money therein mentioned was loaned to him, but avers that the mortgage was executed to secure a loan of the sum of $2,000, made by said Jenkins to Anthony Pelletier, and that said mortgage was executed as collateral security for the same. That said bark, her tackle, etc., was in possession of the plaintiff, Jenkins, at the time of said mortgage, and that defendant was never the owner thereof. That said defendant well knew, at the time of said loan, that the defendant was not the owner of said bark, and had no interest whatever in it, and that said mortgage was executed by the defendant, because said bark stood in his name at the custom house, and for no other reason whatever. Defendant denied that he ever agreed to obtain said insurance for said Jenkins. He also denied that the underwriters had ever paid him any sum of money whatever on insurance policies effected by him on said bark. Defendant also denies all the other allegations of the complaint.

The plaintiff, Jenkins, having died, the action was continued in the name of the present plaintiff, his representative.

Wpon the trial, the plaintiff produced the mortgage, dated February 5, 1853, executed by the defendant Wheeler, which was given upon five-eighths of said bark, to secure the sum of $2,000, but which contained no covenant or agreement to pay the same, by said defendant, Wheeler, but the defeasance clause was in these words: Provided, nevertheless, that if Anthony Pelletier, his executors, etc., or any of them, do and shall well and truly pay unto the said Oliver H. Jenkins, his executors, etc., the sum of $2,000 and interest at the rate of seven per cent per annum, on or before one year from the date thereof, then those presents and every thing therein contained should cease and be void, otherwise to remain in full force and virtue.”

It also appeared, that, on the said 5th of February, 1853, the said Pelletier made and executed, and delivered to said Jenkins, his bond in the penal sum of $4,000, conditioned to pay the sum of $2,000 on or before one year from the date thereof, with interest thereon at the rate of seven per cent per annum, and which contained this clause : “ which said sum is secured to be paid by a certain mortgage of even date herewith, on the bark Peytona (now lying at the port of Hew York), and if said mortgage is paid according to the •conditions therein expressed,” then that obligation was to be void. The mortgage and this bond demonstrate conclusively, that this sum of $2,000 was, in fact, loaned by Jenkins to Pelletier. In addition, Pelletier, a witness on the part of the plaintiff, testified, that Jenkins was to loan the $2,000 to him for his witness’ benefit, and that he was to secure him by his bond and a mortgage on the ship. He also testified, that Jenkins had agreed to loan him $2,000, and that he took Jenkins to the defendant’s office to prepare the paper which he was to give Jenkins to secure him for the loan. •

There was no conflicting testimony on this point, and it is very clear, therefore, that Jenkins did not loan the $2,000 to the defendant, but that it was loaned by him to Pelletier. Equally unsatisfactory is the proof of the alleged agreement by Wheeler, to procure for Jenkins a policy of insurance on the vessel to the amount of $2,500. A witness testified, that Jenkins and Wheeler were in his office about the time Jenkins was to sail, and he overheard a conversation between Jenkins and a brother of the witness, Wheeler being present, and at the same time the witness’ brother delivered Jenkins some money. Jenkins turned toward the counter and said, there were certain papers that were not then ready, but that Mrv Wheeler would get them ready, and inclose them in an envelope and send them to the office for us to transmit to his wife, Mi’S. Jenkins; he mentioned what papers they were; he mentioned there was to be an agreement, a bond and mortgage, and a policy of insurance; he did not state for how much. This witness said he did not see Jenkins pass any money to Wheeler.

The witness was asked, “Was there any thing said as to what the policy of insurance was to he upon?”. Answer. , “ I can’t say any more than it was to secure this loan, I can’t say .what it was to be upon.” He was then asked, “ Did Wheeler say any thing that you recollected particularly ? ” Answer. “He made no objection.” It thus affirmatively appears that the defendant made no agreement to procure a policy of insurance, or promised to procure one. The witness Pelletier testified, “ that the ship was mine, and I had to secure Jenkins for the money that went to my benefit, therefore I was in duty bound to insure it, as it was far more valuable to the vessel; I promised Captain Jenkins I would see him insured before he would see Mr. Wheeler.” This witness also testified, that he effected an insurance for the full value of the vessel. He further testified, that the $2,000 received from Jenkins, went to his benefit in the account with Overman and Gruner.

This evidence furnishes no basis for the allegation, that the defendant engaged or promised to effect.an insurance on the vessel, as security for the loan of $2,000. ■ That loan was made to Pelletier, the money received by him, negotiated by him with Jenkins, and the engagement and promise to procure the insurance for the benefit of Jenkins were made by Pelletier. There is no evidence that any such engagement or promise was ever made by the defendant. ¡Neither was there any liability created, as against the defendant, by reason of this loan to Pelletier, assuming that it was made for the benefit of the vessel, from the circumstance that the title stood in the defendant’s name at the custom house. The defendant was not in possession of the vessel, and did not control it. The question of his liability, in this aspect, was settled 'by this court in the case of Macy v. Wheeler (30 N. Y. 231).

The plaintiff was properly nonsuited, and the judgment thereon should be affirmed, with costs.

Judgment affirmed.  