
    Kimball Gallop versus Augustus Newman et al.
    
    A and B being owners of a brig and cargo bound on a voyage, C advanced them 600 dollars, taking from them a contract which acknowledged the receipt of the money, “ being the amount of his [C’s] adventure on board said brig, to be received from tne proceeds of said brig’s cargo whenever her voyage may end,” and concluded, e( We the subscribers promise to pay said C or his order his proportion of the proceeds of said cargo according to the aforesaid investment of GOO dollars, reckoning the cargo at its fair cash price and necessary charges, including duties and insurance, and in case of loss the above amount to draw a proportion of insurance recovered.” The invoices and bills of lading were in the names of A and B. While the vessel was absent on her voyage, A and B indorsed the bills of lading and made an assignment of the cargo, bond fidey to E and F, who had signed and indorsed notes for the accommodation of A and B, in order to indemnify E and F for their liabilities, the balance of the proceeds of the cargo to be paid to A and B’s order ; and after the assignment E and F accepted A and B’s order to an amount which would cover all the surplus. Until after this time E and F remained ignorant of A and B’s contract with C. E and F having received and sold the cargo, C brought an action for money had and received against them. Held, that C, by the contract of A and B, did not become a part-owner of the cargo, and that his claim was personal against A and B ; and consequently, that E and F were not liable to C for any part of the proceeds of the cargo.
    This was an action foi money had and received, which was submitted to the Court on the following statement of facts.
    In March, 1826, Nathaniel Safford and Josiah Gould were the owners of the brig Monroe of Beverly, then bound on a voyage to Africa. The plaintiff, wishing to be interested in the voyage, advanced 600 dollars to Safford and Gould, receiving from them the following receipt and promise under their signatures. “ Beverly, March 4, 1826. We, the owners of brig Monroe, Capt. James Vent, hereby acknowledge to have received of Mr. Kimball Gallop 600 dollars in cash, being the amount of his adventure on board said brig, to be received from the proceeds of said brig’s cargo whenever her voyage may end, either upon the coast of Africa, America, or elsewhere. We, the subscribers, promise to pay said Kimball Gallop, or his order, his proportion of the proceeds of said cargo according to the aforesaid investment of 600 dollars, reckoning the cargo at its fair cash price and necessary charges, including duties and insurance, and in case of loss, the above amount to draw a proportion of insurance recovered.” Insurance was effected by Gould for whom it might concern, the loss payable to his order. The invoices and bills of lading of the cargo, both outward and homeward, were in the names of Gould and SafFord. The brig sailed on her voyage. During her absence Gould and SaiFord, by deed dated April 8, 1826, conveyed the brig Monroe’s cargo, with other property, to the defendants Newman and Payne, to indemnify them for certain promissory notes signed by them, and delivered to Gould and SafFord for their accommodation, and to enable them to raise money on the notes. The assignment conveyed all the cargo of the Monroe shipped by Gould and SafFord, “ particularly described in the invoice and bills of lading heretofore by them indorsed and delivered over to the said Newman and Payne, and all and singular any sums of money or credits, being the proceeds of said goods, wares, and merchandise, for which the same shall be bartered or exchanged, or in which the proceeds thereof are or shall be invested.” And the assignment authorized Newman and Payne to sell the goods and appropriate the proceeds thereof to the payment of the notes, and to indemnify themselves for any loss or damage which they might sustain by reason of their having signed them. And Newman and Payne undertook to pay over the surplus, if any, to Gould and SafFord’s order. On April 7, 1826, Newman and Payne accepted an order drawn on them by Gould and SafFord in favor of Mrs. Abigail Gould for 20,000 dollars, provided such a balance should remain in their hands after the objects of the assignment were satisfied.
    Nov. 6th.
    
    Gould and SaiFord failed soon after making the assignment; and Newman and Payne have not received sufficient property under it to indemnify themselves and pay the order in favor of Mrs. Gould.
    The brig Monroe arrived at Beverly from her voyage, in December, 1827. The plaintiff was the first mate of the brig. Soon after her arrival he notified Newman and Payne of his agreement with Gould and SafFord, and of his claim on them (Newman and Payne) on account of the same.
    Judgment was to be given for either party according to the opinion of the Court.
    Shillaber, for the defendants.
    By the agreement m this case, the plaintiff acquired no property in the cargo ; he be* came neither a partner nor a joint owner in regard to it with Gould and Safford. All that the plaintiff acquired was a personal claim against Gould and Safford for his proportion of the proceeds. He looked only to their personal responsibility. The amount he was to receive was to be regulated by the amount of proceeds, by way of interest and compensation. That it was not intended to make him an owner of the cargo, is evident from the circumstance of the bills of lading and invoices being in the name of Gould and Safford alone. He incurred no liabilities as owner of the property, and therefore ought not to have any privileges as owner. It has been held that an agreement with a captain of a vessel, that he should have in lieu of wages, primage, &c. one fifth share of the profit or loss of an intended voyage, did not make him a part owner of the cargo. Mair v. Glennie, 4 Maule & Selw. 240. So it has been held that the master and sailors who engage in a whaling voyage, and who are to receive a certain proportion of the net proceeds of the oil which shall be obtained, are not partners with the owners of the ship. Baxter v. Rodman, 3 Pick. 435 ; S. P. in Wilkinson v. Frasier, 4 Esp. R. 182. Dry v. Boswell, 1 Campb. 329, is a similar case. There are various other cases in which similar contracts have been held not to create a partnership or part-ownership. Muzzey v. Whitney, 10 Johns. R. 226 ; Barney v. Coffin, 3 Pick. 115 ; Morse v. Wilson, 4 T. R. 353 ; Hamper, Ex parte, 17 Ves. 404 ; Waugh v. Carver, 2 H. Bl. 235 ; Hesketh v. Blanchard, 4 East, 144 ; Post v. Kimberly, 9 Johns. R. 470.
    The plaintiff then having no interest in the cargo, and Gould and Safford assigning the bills of lading and invoices which were m their names, the evidence of the property, to the defendants bona fide and for a valuable consideration, the defendants are not liable to pay the plaintiff. Even if the plaintiff was a part-owner of the cargo, a transfer by Gould and Safford of the bills of lading and invoices, which were in their names, to a bond fide purchaser, would pass the cargo free from any claim of the plaintiff. The indorsement and delivery of the bill of lading, is equivalent to the delivery of the property itself. Lickbarrow v. Mason, 2 T. R. 63 ; Salomons v. Nissen, 2 T. R. 679 ; Lickbarrow, v. Mason, 5 T. R. 683 ; Hibbert v. Carter, 1 T. R. 745 ; Wright v. Campbell, 4 Burr. 2046.
    But even if the plaintiff was a partner or part-owner, still Gould and Safford had the right, as his partners, of disposing of the cargo, more especially as he was only a dormant partner, and they the only ostensible persons. Gow on Partn. 74 ; Fox v. Hanbury, Cowp. 445 ; Pierson v. Hooker, 3 Johns. R. 70 ; Livingston v. Roosevelt, 4 Johns. R. 277 ; Lamb v. Durant, 12 Mass. R. 54.
    
      Saltonstall, for the plaintiff,
    contended that Gallop had an interest in the cargo itself. Gould and Safford were not to pay him 600 dollars at all events, but out of the proceeds of this cargo ; he had an interest in the profit or loss of the voyage ; it was an insurable interest, and in case of loss he was to receive his money of the underwriters. The cases cited on the other side, of a share of profits being agreed to be given as a compensation for services, are obviously entirely different from this case. The creditors of Gould and Safford can have no right to the interest of the plaintiff, the other partner, in the cargo. Taylor v. Fields, 4 Ves. 396 ; Fox v. Hanbury, 1 Cowp. 445 ; Hankey v. Garret, 1 Ves. jun. 239 ; Pierce v. Jackson, 6 Mass. R. 242. The bill of lading oeing in the name of Gould and Safford, was not conclusive evidence of their property, and does not prevent the plaintiff from proving his interest. Maryland Ins. Co. v. Ruden’s Administrator, 6 Cranch, 338 ; Barrett v. Rogers, 7 Mass. R. 297 ; Hibbert v. Carter, 1 T. R. 745 ; Potter v. Lansing, 1 Johns. R. 215. Under this assignment the defendants only obtained the interest of Gould and Safford in the property. The claim of the plaintiff is not personal against Gould and Safford, but a right in the property.
   The opinion of the Court was afterward drawn up by

Parker C. J.

To enable the plaintiff to recover in this action, it must appear that he was an owner of a certain proportion of the cargo which came to the hands of the defendants by virtue of an assignment from Safford and Gould to them, which was bona fide and for a valuable consideration. The -liabilities the defendants were under for Safford and Gould, were a b°°d consideration, and the acceptance of the draught in favor of Mrs. Gould, whom we take to be a fair creditor of Safford and Gould, swallows up all the property which came to the hands of the defendants. We understand also, that the defendants had no notice before the assignment to them, of the claim of the plaintiff upon the cargo. The invoice and the bills of lading both represented the whole cargo as the property of Safford and Gould, and these documents were indorsed and delivered over to the defendants. Under these circumstances the plaintiff’s claim could he sustained only by showing a distinct right of property in a portion of the cargo, and this he fails to do, for liis contract with Safford and Gould only creates a personal obligation on them to account for and pay to him, at the close of the voyage, such proportion of the proceeds as the sum he advanced would entitle him to. Certainly the whole property was liable to attachment as Safford and Gould’s, and if so, was capable of being assigned by them to any one ignorant of the plaintiff’s interest. His misfortune was in trusting to the personal credit of men involved in debt. We regret his loss, but the law will not repair it out of the property of the defendants.  