
    Pliny Cutler et al. versus Peter Winsor.
    A ship-master having agreed to take the defendant’s schooner for the purpose of getting employ in the freigiiting business, engaged to victual and man her, and pay half of all port charges, pilotage, &c. and the defendant engaged to pay the other half, together with eight dollars per month for one man’s wages, and to put the schooner in sufficient order for the business ; and all money so stocked in the schooner, whether for freight or passage or whatever, was to be equally divided between the master and the defendant, each party accounting for the above. Held that the master was owner pro kac vice that the contract did not make him and the defendant partners : and that the defendant was not answerable to a shipper of goods which had not been delivered according to the bill of lading.
    Where a vessel is chartered without any limitation of time, it is an indefeasible hiring for every voyage which she shall have undertaken before notice from the owner of his intention to put an end to the contract.
    Assumpsit against the defendant as owner of the schooner Alexander, for certain goods laden on board of her by the plaintiffs at Boston, to be carried to Alexandria, she being then commanded by Jesse Snow.
    The defence rested upon the ground, that Snow was char terer of the vessel, and so constructive owner pro hac vice, when the goods were shipped ; and to maintain it, the defendant produced the deposition of Snow, originally taken on behalf of the plaintiffs, and to which was annexed the written agreement made between Snow and the defendant concerning the use of the vessel.
    The material part of this agreement is as follows : — “ The said Capt. Snow having agreed to take the said schooner Alexander for the purpose of getting employ in the freighting busi ness, doth by these presents promise and oblige himself to victual and man the said schooner, and "pay one half of all port charges and pilotage, &c. And I the said Winsor do promise, on my part, to put said schooner in sufficient order for such business, with sails, rigging and tackling, likewise to pay one half of the port charges, pilotage, &c. together with eight dollars per month for one man’s wages ; and it is understood that all money or moneys so stocked in said schooner, whether for freight or passage or whatever, shall be equally divided between the said Capt. Snow and Winsor, each party accounting for the above.”
    
      
      March 15th,
    
    Snow deposed, that he went to hire the vessel of the oefendant, and it was agreed that he should have half of the net for the use of her ; and in conversation about the deponent’s compensation as master, a commission of five per cent on the net earnings was talked of, but it was finally agreed that he should have eight dollars a month instead of commission, and their agreement was put in writing as above. He further deposed, that he made the contracts personally with the shippers of goods, including the plaintiffs ; that the defendant gave him no orders whatever about the destination or employment of the vessel at any time ; and that he had requested the deponent to write to him from time to time to let him know where the vessel was, where the deponent was going, and what his business was.
    A verdict was taken for the defendant, subject to the opinion of the whole Court.
    
      F. Dexter and Washburn, for the plaintiffs.
    The deposition of Snow cannot be admitted to vary or explain the written contract between him and Winsor. This contract was not a charter-party, but Snow was the agent of Winsor. The vessel was not under the general control of Snow, for he was re stricted to the business of freighting. No period was limited during which he was to have the vessel, and Winsor might have interfered at any time and dissolved the contract. All the acts done by Snow were within the scope of his authority as master. He had no power to appoint another person master ; which is essential to a hiring. The share of the earnings which he was to receive, was merely a mode of paying his wages. If he had suffered the vessel to remain idle for several months, he would hav.e been subject to an action for want of due diligence. In Taggard v. Loring, 16 Mass. R. 336, Jennings had the control of the vessel for a given period. He did not stand to the owner in the relation of master, and lie might have appointed any other person master. In Reynolds v. Toppan, 15 Mass. R. 370, the vessel was “ let and chartered” to Marshall for “ the season.” He was to employ her on his own account' and at his own expense, and ne might have appointed another master, and the vessel was not a freighting ship By § 3 of St. 1818, c. 122, limiting me responsibility of ship-owners, “ the charterer of any vessel, in case he shall navigate her at his own expense, shall be considered the owner, within the meaning of this act.” This vessel was navigated partly at the expense of the defendant. Clark-son v. Edes, 4 Cowen, 480 ; Parish v. Crawford, Abbott (3d ed.), 21 ; Fletcher v. Braddick, 5 Bos. & Pul. 182.
    The agreement was a contract of partnership. Snow and Winsor were to participate in the profits as such, and were entitled to an account one from the other. Both therefore are liable for the breach of the contract with the plaintiffs, and the non-joinder of Snow not having been pleaded in abatement, the action will be sustained against Winsor alone. Gow on Partn. 16, 17; Montag. on Partn. 7; Hamper, Ex parte, 17 Ves. 404; Grace v. Smith, 2 W. Bl. 998; Waugh v. Carver, 2 H. Bl. 235; Cheap v. Cramond, 4 Barn. & Aid. 663; Langdale, Ex parte, 18 Ves. 300; Hesketh v. Blanchard, 4 East, 144; Purviance v. M'Clintee, 6 Serg. & Rawle, 259; Smith v. Watson, 2 Barn. & Cressw. 401; Sylvester v. Smith, 9 Mass. R. 119; Mumford v. Nicoll, 20 Johns. R. 611.
    
      C. G. Loring, contra.
    
    The criterion of chartering is having the exclusive possession and control of the vessel, free from any right of the owner to interfere. Here Snow was to get the freight himself. There was no limitation as to the prices for which he should carry goods, or the places to which he should proceed. He was to victual and man the vessel at his own expense. The stipulation that Winsor should pay “ eight dollars per month for one man’s wages,” was not a contract to pay wages, but merely to pay eight dollars a month. Vallejo v. Wheeler, Cowp. 143; James v. Jones, 3 Esp. R. 27; Trinity House v. Clark, 4 Maule & Selw. 288; Saville v. Campion, 2 Barn. & Aid. 503; Frazer v. Marsh, 13 East, 238; M'Intyre v. Bowne, 1 Johns. R. 229; Marcardier v. Chesapeake Ins. Co. 8 Cranch, 39; Hallet v. Col. Ins. Co. 8 Johns. R. 209; Reynolds v. Toppan and Taggard v. Loring before cited. It is objected that no time was fixed for Snow’s retaining the vessel ; but in this respect the contract is like a lease at will, and Winsor could not put an end to it without reasonable notice. It is objected, too, that the vessel was restricted to freighting; but this is not inconsistent with chartering, any more than a stipulation that a house shall be used as a tavern, is inconsistent with a lease. Snow, it is said, could not have appointed another master; so a tenant at will cannot underlet. To show that Snow had not the control of the vessel, it was remarked that he would have been liable to an action if he had let her lie idle. This is true, and the reason is, that it was agreed she should be employed in freighting ; but Snow might use her as he pleased in that business.
    
      June 26th.
    
    As a general rule, an agreement to share profits constitutes a partnership, but there are exceptions. Here however there was no division of profits, but of the gross earnings. If the voyage were long, Snow might lose while Winsor would gain. A division of net earnings would make a partnership. Dry v. Boswell, 1 Campb. 329; Mair v. Glennie, 4 Maule & Selw. 343; Rice v. Austin, 17 Mass. R. 205; Muzzy v. Whit nev, 10 Johns. R. 226; Jackson v. Robinson, 3 Mason 138; Wilkinson v. Frasier, 4 Esp. R. 182; Baxter v. Rod man, 3 Pick. 435.
    
      Dexter, in reply.
    In regard to Snow’s being authorized to go where he pleased, it is common for the owner to authorize the master to proceed according to his discretion on a freighting voyage. The sum of eight dollars per month is stipulated to be paid as the average rate of wages, and it is wages eo nomine. Admit the contract to be like a lease at will, and that Snow was entitled to reasonable notice, Winsor could put him out immediately for misconduct; and in this the case at bar differs from Taggard v. Boring.
    
   Parker C. J.

In the case of Reynolds v. Toppan, 15 Mass. R. 370, it was determined, that the owner of a vessel under charter, the hirer having the whole control of the vessel for the time, to victual and man her and pay over a portion of the net proceeds to the owner for the use of the vessel, was not liable to the shippers of goods on board the vessel, which had been embezzled or otherwise not accounted eor by the master. In that case the English authorities cited on the present occasion were duly considered by the Court and therefore will not be commented upon : and in the case of Taggard et al. v. Loving, 16 Mass. R. 336, the same principle is recognised, and is applied to a contrac of lure of the vessel which existed only in paroi. So that the inquiry in the present case can be only, whether there exist any circumstances which distinguish it from those which have been thus decided.

And first it is insisted, that in the cases decided, the letting the vessel was for a certain determinate period ; in one case for six months, and in the other for the season ; whereas in the present case there is no provision for the duration or the termination of the contract.

It is not perceived that any difference in regard to the liability of the parties can result from this circumstance, for although the contract was determinable at the will of the owner of the vessel, yet, as in other contracts of a similar nature, this right is subject to the qualification, that it could not be rescinded while the vessel was actually employed in business pursuant to the contract ; so that it was an absolute and indefeasible hiring of the vessel for every voyage she should have undertaken until notice was given by the owner of his intention to discontinue it.

The principle of ownership pro hac vice by the hirer would apply to every voyage undertaken by him before he should receive notice from the owner that he chose to terminate the contract. For this we cite no authority, for no case like the present has been found ; but it results from the nature of the contract and the rights of the party under it, and is analogous to the case of leases at will of real estate, which cannot be terminated but by mutual consent, unless the lessor gives reasonable notice to quit.

It is also thought that the clause in the agreement, which provides that the defendant, the owner, shall be accountable for the wages of one man at eight dollars per month, constitutes a substantial difference between this and the cases decided ; but, on reflection, we consider this only as a means of ascertaining the charges upon the earnings before a division shall be made between the charterer and the owner. It is no more than if the parties had agreed that the earnings should be divided, except that eight dollars per month should be deducted from the defendant’s share.

As to the question of copartnership between the defend ant and Snow in the' employment and earnings of the vessel, we think it cannot be predicated on the facts appearing in this case, any more than in all the cases in which the char-er of the vessel was agreed to be paid by a portion of the-earnings.

Judgment according to verdict 
      
       See Revised Stat c. 39, § 3.
     
      
       See Thompson v. Hamilton, 12 Pick. 428; Perry v. Oshorne, 5 Pick. (2nd ed.) 423, and note 1; 3 Kent's Comm. (3d ed.) 136 to 138, and cases cited Abbott on Shipping (4th Am.) ed. 22 and note.
     
      
       See Thompson v. Snow, 4 Greenl. 264.
     