
    James Gilchrist versus Joshua Ward.
    Specie was shipped on a voyage, from the United States to Sumatra, and back to Europe, under a contract with the owners to receive half profits, in lieu of freight. At Sumatra, the property of the owners and shipper was invested in a cargo for Europe, where, upon the sale thereof, the supercargo caused them to be credited with their respective proportions of the proceeds. The share of the owners was duly remitted to thém, with half the profits on the adventure of the shipper, who having directed a particular appropriation of his share, the same remained in the hands of a merchant, by whose failure a loss accrued thereon. This was held to be the loss of the shipper, of which the owner was not liable to bear any part
    This action, which was case in assumpsit, was tried before Seivall, J., November term, 1806.
    The report of the judge who sat in the trial states that the plain tiff was owner of one quarter of the brigantine Pompey, and master of her for a voyage from Salem to Sumatra, and the defendant was owner of another quarter. The plaintiff, by the orders excepted from the other owners, agreed and undertook to proceed to Sumatra for a load of pepper, and to go from thence to Cowes, in the Isle of Wight, and there wait for orders from Mr. Williams, their agent in London.
    
    
      George Dodge and Stephen Webb, each for himself, by agreement with the defendant, and upon his part of the vessel, shipped several parcels of money receipted for by the plaintiff September [ * 693 ] 18, 1802, who undertook to invest the proceeds * in pepper, and to proceed therewith, as with the owners’ property, the shippers allowing him five per cent, commissions, and half the profits.
    Upon his arrival at Sumatra, the plaintiff obtained 242 piculs of pepper for Dodge, and the like quantity for Webb, and signed bills of lading for the same, to be delivered to their orders at Cowes.
    
    The plaintiff, stopping at the Isle of France, in his passage from Sumatra, contracted, June 2, 1803, with certain French merchants, for one franc per lb., payable in silver money at Bourdeaux, to carry his whole lading of pepper to that port; where, upon his arrival, the same was delivered in good safety, and produced 247,427 fr. 41 cts. The plaintiff there kept distinct accounts with the owners and freighters, and credited to each their respective proportions of the sales ; and particularly to Dodge and Webb, for the proceeds of their shipments, 39,119 fr. 40 cts. At Bourdeaux, the plaintiff employed Strobel and Martenez to manage the concerns of the voyage, and deposited with them the proceeds of the pepper, and drew out for sundry investments and purchases the part thereof belonging to the owners of the brigantine ; but the amount credited to Dodge and Webb, by Strobel and Martenez, as well as by the master, remained in their hands until their failure, about December, 1803, or January, 1804.
    As soon as the plaintiff had intelligence of that event, he obtained from them, on account of Messrs. Dodge and Webb, several trunks of goods, which Strobel and Martenez had previously laden on board the brigantine on their own account, and for the balance due received bills of exchange on Nathaniel Richardson, of Salem.
    
    Upon the return of the brigantine to Salem, the plaintiff offered the trunks of goods and the bills of exchange to Dodge and Webb, as the proceeds of their adventures; but they refused to accept them, and commenced an action against the plaintiff. This dispute was finally adjusted by the award of referees mutually chosen by the plaintiff and Dodge and Webb, which award the plaintiff paid, and disposed of the proceeds of their adventures, excepting the bills of exchange, which were protested, and have never been paid. In this operation, the plaintiff sustained a loss of 2520 * dollars 90 cents, the difference between the sums [ * 694 ] awarded to Messrs. Dodge and Webb and the actual proceeds of their adventures.
    The plaintiff, in adjusting with the other owners of the brigantine the accounts of this voyage, neglected to charge them with any part of this loss, and sustained a further loss in the credit given to the owners for half profits upon the adventures of Dodge and Webb, having credited 1825 dollars, whereas the half profits, according to the final adjustment, amounted only to 1600 dollars ; as by the several accounts mentioned, and the said award, appeared.
    From certain letters read at the trial, it appeared that the plaintiff confessed the contract at the Isle of France, and the voyage to Bourdeaux, to be contrary to his orders and agreement, but thought himself justified by the expected profits: he acknowledged the receipt of advices from Mr. Williams, the correspondent of Messrs. Dodge and Webb, directing the remittance of the net proceeds of tneir adventures to be made in good bills upon London. From the testimony of-Bujjinton, it appeared that money of Dodge and Webb, deposited with Strobel and Martenez, was intended to have been applied to the purchase of bills on London; and from his, and other testimony, that it was difficult at that time to purchase good bills in France upon London; and that Nathaniel Richardson was indebted to Strolel and Martenez to the amount of their bills upon him, and more; but that he had failed, and left this country before the bills arrived.
    The plaintiff moved to give evidence that the voyage to Bourdeaux was more advantageous to the owners than the voyage proposed by them would have been ; but the judge refused to go into this inquiry.
    A verdict was taken for the plaintiff, for 691 dollars 30 cents, damage, including interest from the service of the writ, subject to the opinion of the Court, whether this action is maintained for the sum found by the jury, or any other sum, upon the facts and evidence stated. And the verdict w'as to be set aside or amended, as the opinion of the Court should be.
    The action stood continued to this term for argument; and now,
    * Prescott, of counsel for the defendant,
    contended that the loss for which the plaintiff claims an indemnity in this action having been occasioned by his own misconduct in the breach of his orders, he alone ought to suffer. But if the defendant was bound to contribute to any loss upon the joint stock, the case sufficiently shows that the loss in this case was on the property of Dodge and Webb only, which had been kept separate and distinct from that of the owners, and was alone in the hands of Strobel and Martenez, at the time of their failure. If a loss had happened to the property remitted to the owners, Dodge and Webb would not have been held to contribute to it, if the proceeds of their own adventures had arrived in safety ; and for the same reason, the owners are not bound to contribute to the loss arising on the property of Dodge and Webb.
    
    It appears, further, that Mr. Williams ratified the plaintiff’s act in going to Bnurdeaux, by his directions respecting the purchase of bills, and thus precluded his principals, Dodge and Webb, from any claim on the plaintiff for his breach of orders ; and it may be added that the delay of the plaintiff in drawing their property out of the hands of Strobel and Martenez, was owing to his conformity to those very directions, which induced a greater degree of caution in the purchase of bills of exchange. It is clear,- therefore, that the plaintiff was not obliged to pay Messrs. Dodge and Webb any thing As to the award of the referees, it was res inter alios acta; the defendant was no party to the submission, which took place without his consent or knowledge, and of course is in no degree bind-mg upon him.
    
      
      Jackson, for the plaintiff,
    confessed that his client was chargeable with a breach of orders; but he insisted that the defendant and the other owners had fully ratified all his doings, by receiving the property remitted to them from Bourdeaux by the plaintiff, and by afterwards adjusting with him the accounts of the voyage.  If they chose to accept the profits arising out of the plaintiff’s alleged misconduct, they ought, on every principle, to submit to take their share * of the misfortunes or [ * 696 ] burdens arising out of the same cause. We admit that a master, if he will undertake to break his orders, does it at his own risk, and must answer strictly for the consequences; but if the owners expressly or impliedly ratify his acts, they cannot afterwards dissent from them, but are strictly bound by them. The case may, therefore, be considered in the same light as if the orders to the plaintiff had been' to pursue the same voyage which he pursued in fact.
    It has been said by the counsel for the defendant, that there was a severance of the property of the owners from that of Dodge and Webb previous to the loss, and, therefore, that the former are not liable to contribute. But the facts show that the whole cargo was put into the hands of the factors at Bourdeaux as a joint stock, and we contend it so continued as long as it remained in their hands. As the proceeds of any part were drawn out and shipped for the owners’ account, they then became their distinct property. Had the factors failed while the whole property remained in their hands, the loss would have been joint. It was by accident that opportunities offered to remit to the owners here, before the plaintiff was able to procure good bills to remit to Mr. Williams, for the account of Dodge and Webb. He could not remit on the joint concern, for his orders were different. It depended on his discretion, or the circumstances of the moment, whether the property drawn from the factors should be placed to the account of Dodge and Webb, or of the other owners. It so happened that the remittance for the owners was first drawn out; what remained in the possession of the factors was part of the joint stock, and, being lost, we contend it was a joint loss, and ought to fall on all the concerned.
    There is no pretence for saying that Mr. Williams, as agent for Dodge and Webb, ever ratified the plaintiff’s act in going to Bourdeaux. He had, indeed, no authority to do so, for all communica tian from his principals to him was previous to any knowledge on their part of the plaintiff’s intention; and, in fact, he carefully avoids any such appearance. He directs the plaintiff to remit the proceeds to him ; but at the same time says it would have been much better if he had obeyed the orders given him.
    [*697] *As to the objection that the loss arose from the plaintiff’s delay in procuring bills of exchange, it is a fact within the knowledge of every one that, at the period of this transaction, there was a great difficulty in procuring good bills in France. Failures were very frequent, and owing to the interruption of intercourse between France and England, it was necessary to be very cautious in the mode of remittance. There is no ground to charge the plaintiff as guilty of loches.
    But allowing that the defendant has never ratified the plaintiff’s act in breaking his orders, and that he has no claim on account of the loss by the failure of Strobel and Martenez, there is still the sum of 225 dollars due to the plaintiff for so much allowed the defendant and the other owners by mistake in adjusting the account. They were credited the sum of 1825 dollars for the half profits on Dodge and Webb’s adventures. But as these latter disavowed the plaintiff’s breach of orders, he was obliged to settle with them in the same manner as if he had gone to Cowes, as he was directed. It seems that the half profits of Dodge and Webb’s adventures, if sold at Cowes, would have been but 1600 dollars, which sum only was allowed by the referees ; and this was all the owners were entitled to on account of the profits, if they insist on the plaintiff’s breach of his orders.
    
      Prescott in reply.
    If the owners have ratified the plaintiff’s conduct at all by their settlement with him, they ratified it no further than they were interested. They having barred themselves of their claim on him for the damage they sustained by his breach of orders, cannot make them answerable for what he has been obliged to pay other parties for the same misconduct.
    The cases cited for the plaintiff from the New York reports do not apply. The case of Codwise & Al. vs. Hacker was a suit by the owners against the master for his breach of orders; and it was decided that their having insured the property, and having received it from the master after knowing of his breach of orders, barred them of their claim upon him, and was a ratification of his conduct. But if it had been, as the present case is, a suit by the master against one of the owners, for a contribution to what he, [ * 698 ] the master, * had been forced to pay other owners who had not ratified his conduct, the decision would have been very different.
    It is true that all the property was put into the hands of Strobel and Martenez as a joint stock ; but before any loss happened, all of it was drawn out except that portion which belonged wholly and exclusively to Dodge and Webb. But admitting that what remainea still constituted a part of a joint stock, yet none of the partners had a right to direct any part of it to continue, at the joint risk, an unreasonable time, for his own particular purposes. If Dodge and Webb, for whose use this portion of the property remained in the hands of the factors, have ratified the plaintiff’s acts, they should have borne the loss; if they have not, the plaintiff must bear it himself.
    It was contended for the plaintiff, that if the defendant is not held to contribute to the loss arising from the failure of Strobel and Martenez, yet that the plaintiff is entitled to 225 dollars, because he credited the sum of 1825 dollars as the half profits on Dodge and Webb's adventures, whereas, according to the adjustment with them, those half profits were but 1600 dollars. But if, as we contend to have been the case, there was a complete severance of the joint property at Bourdeaux, and the loss happened after such severance, it was properly the loss either of Dodge and Webb, or of the plaintiff ; and there is no good reason why we should refund money paid us fairly on a settlement made on correct principles.
    
      
      
        Codwise & Al. vs. Hacker, 1 Caines’s N Y. Rep. 526. — . Thurston vs. Columbian Insurance Company, 3 Caines’s N. Y. Rep. 89.
    
   The action stood continued nisi for advisement; and at the following March term in Suffolk, the opinion of the Court (excepting the Chief Justice, who did not sit in the cause) was delivered as follows by

Sewall, J

The plaintiff’s demands, when specified, are, 1. The balance of his payments to Dodge and Webb, after deducting the net proceeds of the actual returns of their adventures in the brig Pompey.

2. A difference in the calculation of profits upon the same adventures ; the profits, as taken at Bourdeaux, and there credited to the defendant, exceeding the estimated profits in the adjustment at Salem,

* The damages and loss in that adjustment, sustained [ * 699 ] immediately by the plaintiff, were, it is said, an expense incurred in the voyage conducted by him for the benefit of the defendant, so far as the adventures of Dodge and Webb were concerned ; and although a consequence of a breach of orders by the plaintiff in changing his destination, yet the defendant, by his subsequent assent in taking to the voyage as performed, and accepting the sales at Bourdeaux, and the investments made there of the proceeds, submits himself to all consequences; at least to all expenses fairly and necessarily incurred in the voyage, as it was eventually performed.

Admitting the justice of the plaintiff’s claim in this view of it, still, as it is not pretended that the award by referees chosen between Dodge and Webb and the plaintiff, without the concurrence of the defendant, is conclusive upon him, the whole question between the parties in the case at bar remains open, and is to be decided upon the evidence now adduced. And to entitle the plaintiff, it must appear that the defendant was originally liable upon his contract with Dodge and Webb for the carriage of their adventures, under circumstances and in a case, which would not entitle the defendant to any recourse against the plaintiff, as master of the vessel, to the amount recovered against him by Dodge and Webb.

It seems to have been understood that Dodge and Webb were entitled, and that they, in fact, recovered against Captain Gilchrist, in consequence of the change of destination in his passage from Sumatra, without taking advice at Cowes. This was done contrary to the orders agreed upon with the owners, and contrary to the tenor of the bills of lading signed at Sumatra. The advantageous sales of the pepper taken for the owners and freighters at Sumatra were the inducement for the deviation ; but where the master had no discretion allowed him, this inducement afforded no justification, until the proceeding was sanctioned by the assent of the concerned. Such a change in the destination might have proved a loss of insurance both to the owners and freighters. And it is well understood that one consequence of a voluntary deviation from the course of a voyage agreed upon is, that the owners and master [*700 ] of the vessel employed incur the risk * of the goods carried on freight; and another consequence is, that the freighter is not to be compelled to receive his goods at any other than the place of destination. But although the shipper is not to 6e compelled, yet he is entitled to receive, and may, if he will, demand his goods at the port where they may happen to arrive after a voluntary deviation ; and his receipt of them there determines the risk of the carriers, who become entitled to their hire and commission, as upon a strict fulfilment of their contract.

The destination of the Pornpey, or the market in Europe to which she was to proceed from Cowes, depended upon the advice of Mr. Williams. He was equally the agent, in this respect, of the owners and of Messrs. Dodge and Webb, who, for the purposes of this inquiry, are to be considered in the light of freighters. Mr. Williams appears to have expressed some disapprobation of the conduct of Captain Gilchrist in proceeding to Bourdeaux, or rather in fixing his market by his contract at the Isle of France.- But after full information of that contract, and after the arrival of the vessel at Bourdeaux, he notifies his authority from Dodge and Webb, and requires the compliance of Captain Gilchrist in the disposal of their adventures, and the remittance of the proceeds. These directions from the agent of Messrs. Dodge and Webb governed the subsequent proceedings of Captain Gilchrist, and by one of his letters, referred to in the case stated, he expressly advises” his owners that he shall remit and bring to America all the property which he had no positive orders to remit to London. This shows, at least, his understanding of the directions he had received from Mr. Williams. These directions were an acceptance by Dodge and Webb of their adventures at Bourdeaux, and the distinct deposit with Strobel and Martenez for the purposes of remittance to London was a separation of the proceeds of tile sales at Bourdeaux. It became impossible for Captain Gilchrist to manage afterwards the adventures of Messrs. Dodge and Webb, and the shipments for his owner, as a joint concern. If, in the manner of this deposit, or the continuance * of [ *701 J it, Captain Gilchrist was chargeable with unfaithfulness, indiscretion, or gross neglect, although he might thereby become liable to Messrs. Dodge and Webb, yet that would not be in a case where the captain could have recourse for an indemnity against his owners.

Upon the whole, the Court have not been able to perceive the grounds of the award between the plaintiff and Messrs. Dodge and Webb, or how they became entitled to refuse the actual returns of their adventures under the circumstances proved in the case at bar; or how Captain Gilchrist became liable to them for an inevitable loss happening, as the case now appears, without any gross neglect or misconduct on his part. But in any view of the case that has been suggested, the acceptance by Dodge and Webb of the proceeds of? the sales at Bourdeaux, appearing from what is proved of the intervention of Mr. Williams, determined the responsibility of the owners of the Pompey, and of the defendant upon his contract, for the carriage and disposal of their adventures.

This opinion determines also the question made upon the other items of the plaintiff’s demands. If the proceeds of the sales at Bourdeaux were lawfully deposited there to the account of Dodge and Webb, according to their share in the concern, and if the different destination of the owners’ and the freighters’ property necessarily separated their concern, then the amount of profits to be divided between Dodge and Webb and the defendant, upon his contract for the carriage of their adventures, was determined, and the proportion due to the defendant was justly placed to his credit; and no after estimate of the profits could operate to change the state of the account. Besides, the plaintiff at that time credited only what he had received, and what he had no title to retain on his own account. He cannot claim this reimbursement as an indemnity ; for it made no part of his payments to Dodge and Webb; nor has he paid by mistake any sum to the defendant, for which he can be considered accountable to the plaintiff.

The verdict is to be set aside ; and it is the opinion of the Court that the plaintiff is not entitled, from the facts stated, to recover upon either of his demands against the defendant. 
      
      
         Abbott on Shipping, part 3, c. 7, § 8.
     