
    Bent et al. v. Lauve et al.
    The owners of a steamer are bound to pay for supplies furnished to their agents for the use of the boat, and proved to have inured to their benefit.
    By the mercantile law part owners of a vessel are liable in solido for repairs, and necessary expenses {or its use.
    The liability of the parties to a contract, made in another State by an agent of the owners of a steamer residing here, for supplies for the use of the boat, the payment for which was to be made here, must be governed, in whatever relates to the construction and the nature aud validity of the engagement, by the law of the piada where the contract was made. The stipulation as to the place of payment concerns the performance of the contract, which must be according to the law of the place where it is to take place. And where, in such a case, there is no stipulation as to the rate of interest in ease of non-performance, the law of the places of payment must govern in allowing interest ex mora from judicial demand.
    Where anote was payable at a bank, proof that no funds had been placed there to pay the note, either at maturity or since down to the time oí trial, will excuse the omission to apply there foi; payment.
    from the Commercial Court of New Orleans, Watts, J.
    
      C. A. Jones, for the plaintiffs.
    
      Sigur and Eonford, for the appellants.
   The judgment of the court was pronounced by

SiiDEiiL, J.

The petition alleges that the defendants, part owners of the steamer Creole, are in solido indebted to the plaintiffs in the sum of $315 79, with iuterest, for this: that the steamer Belle Creole, being at the port of Louisville, in Kentucky, the plaintiffs, at the request of Dimitry and Plaisent, part owners of the boat, and also officers of the boat and agents of all the owners, furnished certain supplies of that value, upon the delivery and acceptance of which Dimitry and Plaisent, as officers and agents of the boat, gave a promissory note to the plaintiffs’ order, dated at Louisville, and payable in New Orleans, for the amount above stated. The defendants answered by a general denial. The answers to interrogatories prove the ownership of the boat by the defendants at the time of the contract, and the agency and part ownership of Dimitry and Plaisent. It is also proved that the supplies were furnished. There is no express evidence that, at the date of the contract, the boat was employed in the conveyance o-f freight and passengers for hire.

As the action of the plaintiils is not simply upon the note, but upon the contract for supplies, we deem the question, whether Dimitry and Plaisent were authorized to bind their co-proprietors in the form of a promissory note, immaterial. The supplies to the boat are proved to have been made; having inured to the benefit of the owners, they must pay for them. Under the evidence the plaintiffs cannot be considered as having given the credit solely to Dimitry and Plaisent, and discharged the other owners. The language of the note repels this idea. See also Higgins v. Packard, 2 Hall, 547.

The supplies were furnished to the steamer in Kentucky, in which State, as is conceded by the defendants’ counsel, the mercantile law is in force. If the liability of the defendants is to be controlled by the law of the place of the contract, there is no doubt of their liability in solido. The rule of the mercantile law is, that part owners are liable in solido for repairs and necessary expenses for the vessel. See 3 Kent, 156. Story on Partnership, § 419-456. Smith’s Mercantile Law, 155. Wright v. Hunter, 1 East. 40.

If, on the other hand, their liability is'to be tested by the law of Louisiana, where the owners live, it is contended by the defendants that they are not liable in solido. They argue that owne'rs of a steamer are', by article 2796 of the Civil Code, to be treated as commercial partners, if the occupation of the boat or object of the partnership is the “carrying of personal property for hire.” As the fact of such occupation or object is not shown by the evidence, they say that the solidary obligation is not established, and that solidarity in such a case is not to be presumed.

We think the law of Kentucky may be properly applied. It was so expressly held in Ferguson v. Flower, 4 Mart. N. S. 312. That case originated before the adoption of our present Code. The owners of the sleamer are citizens and residents of Louisiana; and, if the contract for supplies had been made in this State, the court, under the decision in Carroll v. Waters, 9 Mart. 500, would have declared the defendants not liable in solido. But as the contract was made in Kentucky, they applied the law of that State as controlling the liability. There seems to be much justice in this doctrine. If the owners of a vessel choose to send, or build, her abroad, and supplies become necessary for her preservation or proper employment, or for her construction, why should the foreigner be expected to inform himself of the law of the place of the owner’s domicil ? It might be difficult, perhaps impossible, for him to ascertain at the time the foreign law, and it is reasonable and in accordance with well settled authority to consider the parties as contemplating, and consequently bound by, the laws of the place where the supplies are furnished, as the test of the liability of the owners.

We have not overlooked the fact that, although the contract for the supplies was made, and the supplies were actually furnished, in Kentucky, New Orleans was the placed agreed upon for the payment of the money. But this stipulation concerned the performance of the contract, and not the construction, nature and validity of the contract. The rule was settled in Depau v. Humphreys, 8 Mart. N. S. 34 (affirming the cases of Morris v. Eves, 11 Mart. 730, and Vidal v. Thompson, 11 Mart. 23), “ that contracts are governed by the law of the country in which they were made in every thing which relates to the mode of constructing them, the meaning to be attached to the expressions by which the parties bound themselves, and the nature and validity of the engagement. But that wherever the obligation be contracted, the performance must be according to the law of the place where it is to take place.” We therefore conclude that, the liability of the owners is to be held solidary, according to the Kentucky law; but as there was no stipulation as to a rate of' interest, in case of non-performance, the judge of the Commercial Court properly took the law of Louisiana as his guide, in allowing interest ex mora from judicial demand according to our law. See Lapice v. Smith, 13 La. Rep. 92.

Lastly, we observe that although the note was made payable at the Bank of Louisiana, the plaintiffs have sufficiently explained the omission to apply there, by proof that no funds had been provided there to pay the note, either at its maturity or at any time down to the trial of the cause. See Wallace v. McConnell, 13 Johns 136, in which the subject was very elaborately considered, and the authorities there cited. • Judgment affirmed.  