Maguire v. Pingree

Wells, J. —In the first and second actions, above named, the plaintiffs claim to recover a portion of the earnings, and of the money received from the insurers for the loss of the brig Friends.. The parties were part owners of the vessel. It appears by the statement of facts, that an attempt had been made to settle the accounts between them, in relation to the vessel, but owing to a disagreement, no settlement was made. But in such cases one part owner cannot maintain an action at law against another, although their joint interest has terminated. The ordinary remedy for an adjustment of the accounts between themselves is in a court of equity. If the parties, in the statement of facts had agreed, that there was a balance due, and how much it was, and it had appeared that a judgment rendered for it would have closed all the transactions between the part owners, and no further cause of action could grow out of them, then the actions, by our law, might have been maintained. Abbot on Shipping, 80; Williams v. Henshaw, 11 Pick. 79; S. C. 12 Pick. 378; Chase v. Garvin, 19 Maine, 211. But by the English law, in such case, an express promise to pay the balance is necessary. Fanning v. Chadwick, 3 Pick. 420; Foster v. Allanson, 2 T. R. 480; 1 Chitty’s Pl. 26, 27. And it is also the law in New York. Halsted & al. v. Schmelzel, 17 Johns. 80. The several contracts between the parties were made and to be performed in the province of New Brunswick, and their legal effect must be determined by the laws of England. Story’s Conflict of Laws, 266; Carnegie v. Morrison, 2 Metc. 397. It is very manifest, therefore, that these actions cannot be maintained. [511] The third action, above named, is brought to recover the defendant’s proportion of a note given to the St. Stephens’ Bank, and signed by him, the plaintiffs and other owners of the vessel, and paid by the plaintiffs. The .money was obtained upon this note for the use of the brig, and was so appropriated, and what was paid by the plaintiffs would be a charge in the general account. It may be that they are already overpaid by the earnings of the brig and the money received by them from the insurers. But whether this be so or not, can be determined by an adjustment only of the dealings of the part owners. This action stands upon the same ground as the two other actions, and must share the same fate. A nonsuit must be entered in each action.