
    Aaron Kimball versus Francis Tucker, Actor Patten Jun., Humphrey Purrington, Actor Patten, ant Joseph Haley.
    Case does not lie by the hirer against the owners of a vessel, upon a charter party under seal, for necessary repairs during the voyage; nor for the casual profits lost by the hirer’s advancing his money for such repairs.
    Where two of several owners of a vessel executed a charter party, under their seals, “ for themselves and the other owners,” the two only were holden liable to the hirer upon the covenants contained in the charter party.
    As sump fit against the defendants, as owners of the brig Mary, for sundry bills of repairs paid by the plaintiff, at Liverpool, in England, in February and March, 1808.
    At the trial of the cause, which was had upon the general issue, at the last September term in this county, before Thatcher, J., the plaintiff read to the jury a charter party under his own hand and seal, and under the hands and seals of the defendants, Tucker and Purringion, who executed the same “ for themselves and the other owners,” dated November 5, 1807, in which the said Tucker and Purringion covenanted that the vessel, in and during the voyage to be made by the plaintiff, should be tight, stanch, and strong, and sufficiently tackled and apparelled with all things necessary for such a vessel and voyage. The repairs were admitted to be neces sary, and payment of the bills was proved.
    The defendants called on the plaintiff to prove them to be the owners of the vessel at the date of the charter party, and when the supplies were furnished; and he examined divers witnesses, whose testimony raised a presumption of the fact. To rebut this presumption, the defendants read, in evidence, a bill of sale, dated October 4, 1807, duly executed, for a valuable consideration therein expressed, by Actor Patten, Jun., conveying his part of the vessel to one John Haley, Jun.
    The plaintiff then offered to prove that the last register of the vessel, previous to the commencement of this action, '* 193 ] * was dated December 31, 1806; that in that register the defendants are named as sole owners; that no register has ever been taken out, in which the said John Haley’s name is mentioned as an owner; and that the said bill of sale was first lodged in the office of the collector of the customs April ' 28, 1808.
    But the judge who sat in the cause overruled the motion, and rejected the evidence; and thereupon instructed the jury, that, as the said Actor Patten, Jun., had sold his part of the vessel before the execution of the charter party, and the advancements made by the plaintiff, the promise alleged by the plaintiff was not proved, and that their verdict must be for the defendants; and it was accordingly so returned.
    The plaintiff excepted to the opinion of the judge, and the action stood continued to this term.
    
      Wilde, for the plaintiff.
    The question in this case is, whether the secret sale by a part owner of his share in the vessel, before the execution of the charter party, shall defeat the plaintiff’ of liis remedy for supplies and repairs to the vessel agreed to be necessary. The plaintiff confided in the register, which was the regular and legal evidence of the ownership. This register remained unaltered until the voyage was completed, and this action commenced. If the owner, who had transferred his share, intended to avoid the responsibility attached to him in that character, he should have seen that the register was changed. But there is, in fact, nothing to show when this sale was made. There is no evidence of the delivery of the bill of sale. Non constat that it was executed before April, 1808, and then perhaps for the very purpose for which it is now produced, —to prevent the plaintiff from recovering a just demand.
    Or, for the defendants.
    All the points which can arise in this ease have been settled. The charter party under seal merged the implied contract. The plaintiff selected two of the owners of the vessel by name, and took their covenants touching the whole of the subject matter in the present controversy. The others [*194 ] were no party to the express contract, * nor can they be to an implied one. The plaintiff made his election in the contract, and he must abide by it in his remedy.  Then the case shows that, at the time of entering into the charter party, Actor Patten, Jun., one of the defendants, had ceased to be an owner, by a bona fide sale. The register of the vessel was properly rejected as evidence to invalidate the sale. No notice of the transfer was necessary, for it took place before the execution of the charter party. If assumpsit lies at all, the plaintiff was obliged to ascertain the owners at his peril. 
    
    
      Wilde, in reply.
    Though covenant undoubtedly lies in the case, it might be questionable whether, in that form of action, the plaintiff could have recovered for the special damages alleged in this case. The gist of the present action is, that, by being obliged to advance his own money in a foreign port, the defendants having provided no funds for the purpose, the plaintiff lost so much of the profits of his voyage as was reasonably to be expected from that sum applied to the purchase of a return cargo. This was a consequential damage, for which case lies, and is not a direct breach of the covenant. An action of covenant accrued to the plaintiff, when the supplies became necessary by the deficiency of the furniture: the right to assumpsit accrued when those supplies were furnished.
    
      
      l) 5 Mass. Rep. 11, Banorgee vs. Hovey & Al. — 6 Mass Rep. 444, Meagher vs. Batchelder.
      
    
    
      
       4 Mass. Rep. 661. — 8 Mass. Rep. 287.
    
   Sewall, J.,

delivered the opinion of the Court.

The question, more immediately presented by the exceptions filed in this cause, respects altogether the inquiry, whether one of the defendants is liable with the rest. The plaintiff complains that evidence applicable to this inquiry was rejected, and that the jury were directed to consider it as a fact proved in the case, that Actor Patten, Jun., had sold his part of the vessel before the execution of the charter party, and before the advancements made by the plaintiff, for the general account of the owners of the vessel chartered. And if this were the only question to be decided, we should incline to the opinion that the evidence rejected was both competent and relevant, although by no means conclusive ; and that a new trial ought to be granted, for the * purpose of [ * 195 ] examining further of the fact of a sale by Actor Patten,

Jun. Besides, we should be disposed to admit, upon proper terms, an amendment of the writ, so as to give the plaintiff an opportu nity of maintaining his action against the other defendants, if they were all clearly liable for this demand, and in this form of action.

But we cannot distinguish this rase from that of Banorgee vs. Hovey Al., cited in the argument; or, rather, we are not disposed to dispute the authority of the decisions by which that case was supposed to be governed. The general principle, that an action on the case will not lie, where the plaintiff depends upon a deed to prove the contract on which he relies, is well established. In the case at bar, the deed, which is essential to the plaintiff’s title in any action, establishes a right of action against two only of the defendants,

Our brother Wilde perceives a distinction between money paid for repairs, or for the furniture of the vessel, and a delay, or damage, or loss in the voyage, occasioned by the want of repairs, or by defects in the vessel or her furniture.

The distinction is inadmissible. The subject matter of the contract is one peculiarly liable to decay and accidents, and to which a continual care, and supply, and expenditure, are necessary. It is therefore necessarily understood, in a contract of charter party, where the owner contracts with the hirer, that the vessel shall be stanch, strong, suitably provided, &c., at the expense of the owner; that every defect of the vessel happening abroad, in the course of the voyage, is to be remedied by the care of the hirer and employer; not that he is to subject the owner to a loss, equal to the expectations and casual profits of the voyage, and for that purpose to stand still, calling for repairs, and demanding the performance, literally, of the covenants in the charter party. It is enough, for all the reasonable effect of this contract, that the hirer, either on his own credit, or the credit of the owner, and ultimately at his expense, provide whatever is necessary to enable the vessel to continue on the voyage and employment for which the hirer has engaged her. And the event, so far as that depends on the dangers of the seas, and the ordinary wear and tear of the vessel and her furniture, is a risk mutually and equally of the owner and employer. If the vessel, sufficient at the commencement of the voyage, be entirely lost in the course of it, the one must betake himself to another vessel, and the other loses his freight money, but nothing more, upon the contract of charter party. The hirer must not abandon the vessel, while he can keep her afloat, and suitably provided for the employ ment and destination for which she was hired; and the owner must be ready to pay all expenses and damages necessarily incurred for the purpose.

The contract of charter party is therefore the only foundation of any remedy between them ; and to that a very different form of action from the present is exclusively adapted, which, in the case at bar, is to be maintained against two only of the defendants.

Another objection to the action, which goes to the merits of it, is the supposed demand of the plaintiff upon an implied promise, not only for the amount of the expenditure, but for casual profits lost, as is supposed, by the advancement made by the plaintiff in Liverpool, of money taken from his stock, and the consequent dead freight of the vessel in her return voyage. If an item of this kind is admissible in an estimate of-damages, the covenant in the charter party is the only ground upon which the demand is to be enforced. There is no implied promise to this effect; and we doubt exceedingly whether, as the course of exchange has been between this country and Great Britain for some years past, there is any possible ground for calculating extraordinary damages, upon an advance of money in England, to be reimbursed here.

Upon the whole, we think justice will be done between these parties, by permitting the verdict to stand, and entering judgment accordingly.

Judgment on the verdict.

ADDITIONAL NOTE.

[See Solomon vs. Higgins, 6 Wend. 425.— Wheeler vs. Curtis, 11 Wend. 653.— Reeve vs. Davis, 1 Ad. & El. 312.—Jones vs. Pritchard, 2 Mees. & W. 199. — Robinson vs. Cushing, 2 Fairf. 480.—Hewett vs. Buck, 5 Shepl. 147.— Cutler vs. Thurlo, 2 Apple, 213.— Thompson vs. Hamilton, 12 Pick. 425 —F. H.] 
      
      
        а) [Vide Tilson vs. Warwick Gas Light Co. 4 B. & C. 968. -- Fletcher vs. Giltespie, 3 Bingh. 635. — Leslie vs. Wilson Others, 6 Moore, 415. — Ed.]
     
      
      
        [Hall vs. Smith, 1 Bam. Cresw. 407. — 2 Bowl, Ryl. 584. — Burnell vs 
        Jones, 3 Barn. & Ald. 50. —Norton vs. Heron, Ry. & Mo. 229. —Iveson vs. Conington, 1 B. & C. 160. — Sed vide Mann vs. Chandler, 9 Mass. Rep. 335. — Dawes vs. Jackson, Ibid. 490. — Hovey vs. Magill, 2 Conn. R. 680. — Ed.]
     