Gager v. . Babcock

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 156 The defendant was the mere nominal owner of the vessel; and as between him and Adams the latter appears to have been the beneficial owner controlling the vessel and receiving her entire earnings. At the time of the seizure of this vessel the plaintiff also owned a vessel which was seized for a similar offence, and he proposed to Adams that if he would procure a surety for him, he, plaintiff, would sign for him, Adams. Adams then did procure a surety for him and he signed for Adams. Such is the evidence, and the court might well have inferred that the plaintiff signed the bond for Adams' benefit upon his credit, and not upon the credit of the defendant as the legal owner of the vessel. The plaintiff in his complaint does not base his right to recover upon the first bond, which he executed to release the vessel from the marshal, and he does not, in his complaint, even allude to or mention that bond, and he does not mention the fact that he ever incurred any liability on account of that bond, or that any judgment or decree had been rendered against him as surety in such bond. He bases his right to recover entirely upon the bond given upon the appeal, and the payment of money by him as surety in such bond. It does not appear, however, that he ever paid a dollar assurety, on the appeal bond. As I understand it, the proceeding in the District Court was one in rem against the vessel, and after the bond was given to release the vessel, the bond took the place of the vessel, and the decree in that court was not one which could be enforced in personam, against the defendant as owner, because he did not sign the bond, but it was a decree in personam against the sureties, which could be enforced against them by execution. This *Page 158 decree was upon the appeal affirmed in the Circuit Court, and a decree of affirmance was entered in that court. Execution was issued upon this last decree against the plaintiff, and he paid it, and for such payment he brought this action. He made the payment as defendant in the decree and execution, and not as surety upon the appeal bond. He would have been equally obliged to pay the execution if the bond had been signed by some one else, and he had not signed it. Hence, I am unable to see how this action, based upon a claim for money paid by plaintiff as surety upon the appeal bond, can be maintained. But further, the appeal bond was not conditioned to pay the damages, as well as costs and expenses, but simply to pay "the costs and expenses" awarded against him upon the appeal. Here there was no proof of the amount of the costs and expenses upon the appeal, and if the plaintiff had been prosecuted upon the appeal bond, I do not see how he could have been made liable for the amount of the decree appealed from, as well as the costs and expenses. Hence, without going further, we find abundant reason for reversing the judgment appealed from. But if we so far assent to plaintiff's claim as to hold that he, as surety in the appeal bond, was liable to pay the whole amount of the decree in the Circuit Court, and that he did pay it as such surety, the result must be the same. We will assume, as we must, that the defendant was the legal owner of the vessel, and that he permitted himself to be held out to the world as such by Adams, the master. He resided in the city of New York, and Buffalo, in the same State, was the home port of the vessel, in which she was seized. At the time the appeal bond was given, the vessel was in no peril. She had been released and restored to the master. Under such circumstances, Adams had no authority, as master, to prosecute an appeal, or to give the appeal bond. It is not necessary to determine what authority he would have had in a foreign port, because masters have greater authority in a foreign than they do in a home port. He was in the home port, near the residence *Page 159 of the owner, and could have communicated with him. A master, in a case of extreme necessity, has authority to sell the cargo. But in Bryant v. Commonwealth Ins. Co. (13 Pick., 543), where a vessel was stranded on the coast of Virginia, and the cargo was landed without damage, and was not of a perishable nature, and might have been kept in reasonable safety until the owners and insurers, who lived in Massachusetts, could be heard from, it was held that the master had no authority to sell the cargo, and break up the voyage, without waiting until the owners and insurers could be consulted. Mr. Justice PUTNAM, in delivering the opinion of the court, says: "It would be clear that if the master assumed to act for the owners and underwriters, when they were present, or so near as to be consulted in regard to the disposition of the property, his acts, under such assumption of authority, would not bind them." The master is the agent of the owner, appointed by him, and is authorized to act for him in all matters which are fairly embraced within the scope of his appointment. He has the control and management of the vessel, and can hire and discharge seamen, can, ordinarily, purchase supplies and procure repairs upon the credit of the owner, and, in case of any emergency, in the absence of the owner, do whatever is necessary to save the vessel or to prosecute his voyage. But when the owner is himself present, or within easy access, that agency of the master, which is founded on necessity, disappears, for the necessity has ceased to exist. (1 Parsons on Mar. Law, 380.) The contracts which he is authorized to make must relate to the condition or the use and employment of the ship. Here the owner was within easy access, and the appeal and giving of the bond had no relation whatever to the condition or use or employment of the vessel. All peril to the vessel had passed. In Belden v.Campbell (6 Eng. L. E., 473), it was held that the master had no authority to borrow money to pay for work already done; and, therefore, where the ship, bound for Newcastle, was towed into that port, no agreement having been previously made that the towage was to be *Page 160 paid for immediately, and the master, six days afterward, borrowed money to pay for the towage, it was held that the owner was not liable. Here the bond was given long after the liability, if any, of the owner had been incurred. To test it, could the master have borrowed money of the plaintiff, upon the credit of the owner, to pay the decree? I think not. And if he could not do this, how could he bind the owner by procuring the plaintiff, in any way, to become surety for the payment of the decree? Hence I conclude that within principles of law, that admit of no dispute, the master had no authority to bind the owner to the plaintiff, by the contract of indemnity, implied by his becoming surety upon the appeal. But it seems to be claimed, on behalf of the plaintiff, that, admitting all this, inasmuch as the defendant was bound by the decrees of the District and Circuit Courts, and could not impeach them, he is, irrespective of the authority of the master, bound to the plaintiff, who became his surety upon the appeal. The master appeared for the defendant in those courts, and procured an attorney to appear for him; and it may be that he is so far bound by the decrees pronounced against him, that he cannot attack or impeach them collaterally. (Brown v. Nichols,42 N Y, 26.) An unauthorized attorney may appear in an action for a party and the party may be bound by the judgment pronounced against him; but yet he may not be bound by all the attorney may assume to do for him. If the unauthorized attorney should procure some one to pay or become security for the judgment, he could not bind the party. And suppose he should commence a suit and procure an attachment or order of arrest to be issued, and procure some one to sign as surety an undertaking, would it be claimed that he could thus place the party for whom he acted without authority under any obligations to the surety? And yet the party might be bound by the judgment. A person who becomes surety for a party in a legal proceeding must see to it that *Page 161 he becomes such upon the request of the party himself, or his attorney or agent duly authorized to act for him. The plaintiff's case is not strengthened any by the fact that the plaintiff signed the first bond, and became liable thereon, because he has not in any way based his right of action upon that bond, and I will not, therefore, inquire whether the defendant was bound to indemnify him as surety upon that bond. But it may well be doubted whether he was, as the vessel was in her home port, and the owner within easy access where he could have been consulted. The judgment of the Circuit and General Term must be reversed and new trial granted, costs to abide event.