McGilvery v. Stackpole

Howard, J. — The ultimate purpose of this suit is to obtain an adjustment of accounts between the parties, as part owners of a vessel. The plaintiffs resided at Sam Francisco, California, and one of them, McGilvery, was the major and managing owner ; and the defendant was both part owner and master. The case is submitted upon the bill, answer, and agreed statement of facts. The vessel was fitted out at San Francisco, and sailed laden with passengers, in July, 1850, for Guyamas, on the Gulf of California, thence to Mazatlan for orders to some port on the Pacific, and back to San Francisco. Before reaching the -first port of destination she was wrecked, at [286] Cape St. Lucas, on the coast of California. She was there sold by the master, with her apparel, furniture and supplies» His conduct in managing the vessel, and making the sale, is conceded to have been unobjectionable, and such as the emergencies demanded. Soon afterward the defendant left with the avails of the sale for Panama, in a vessel bound for that port. Thence he crossed the Isthmus, and took passage to New York, and returned to his residence in this State. He now claims to retain the entire proceeds of the sale, which are less than the amount of his account, which was rendered as a part of his answer. This account is admitted to be correct, with the exception of an item of §100, “paid for passage from Panama to New York,” and a large portion of the item for services as master, up to his arrival in New York, covering four months and twelve days. The vessel was stranded and wrecked in one month after the defendant’s employment as master commenced. ' But his wages would continue so long as he continued to render services under the contract. When the voyage was broken up, and when he could no longer act in the capacity of master, his compensation would cease. It appears, that the master and mate staid by the wreck, and rendered important services to protect and secure the property of the owners, until it passed into other hands, by the sale and delivery, on or about the 25th of August, 1850. To that time, wages were paid to the mate by the master, with the approbation of the owners. To the same time it would be but just, that the wages of the master should be computed. If he had rendered further service, or incurred expense in securing, transporting or transmitting the funds belonging to the owners, he would for that be entitled to a just remuneration. For when the voyage is interrupted by shipwreck, or other casualty, the master of the ship becomes of necessity an agent for the owners, and all concerned, with authority to act for them, as if upon special request. But there is no evidence, in this case, [287] upon which he can basé any claim for such services or disbursements. In going to Panama, and thence to New York, and to Maine, he was not in the employment of the owners, but was following his own bent; and though with funds belonging to them, yet not in pursuance of any obligation arising from his relation as master or joint owner, but rather, as it would seem, in avoidance of palpable duties. And so, if he encountered perils on the way, as is contended, it was not in an enterprize in which the p'art owners were concerned, or in the accomplishment of which they are to be affected. We have wholly failed to perceive upon what principles of law or equity, the defendant can be entitled to the amounts charged and claimed as “ paid for passage from Panama to New York,” and for services after the relation and duties of master had been terminated, by events that had transpired at the place of disaster. After disallowing these sums, and deducting from the proceeds of the sales, the balance of the account of disbursements as charged, and the compensation of the master, to be computed, as before stated, and one eighth belonging to him as owner, there will.remain in his hands six hundred and thirty-one dollars and eighty-one cents, belonging to the plaintiffs. For that sum, with interest from the date of the writ, as claimed, they are entitled to a decree, with costs; and it is adjudged and decreed accordingly. Shepley, C. J., and Tenney, Appleton and Hathaway, J. J., concurred.