Briggs & Cobb v. Barnett

Buchanan, J., delivered the opinion of the court. This is a suit for contribution instituted by Charles M. Barnett and George Twohy against George S. Briggs, Vincent Cacace and W. C. Cobb. The record shows that in March, 1904, the parties to the suit, except Cobb, became the owners of a ship known as the “Henry B. Hyde,” with her cargo, which was lying aground in the Atlantic- Ocean near Virginia Beach, — 406 — each holding an one-fourth undivided interest therein. They determined to make an effort to float the ship and entered into a contract which was partly in writing and partly oral for that purpose. The agreement, so far as it was evidenced by a writing is as follows: “The following agreement is hereby entered into between the undersigned owners of the ship ‘Henry B. Hyde’ as she lies on the beach near Dam ISTeck Life Saving Station, Va. “That we will leave the matter of stripping and floating directly in the hands of Vincent Oacace, it being understood that he will make all negotiations and do the best for all concerned. “It is further understood that he will send his barge, ‘Joseph’ down to the wreck to assist in the work, valuing the barge at $4,000. He is unable to secure insurance and it is understood, in the event of a loss, that each of the owners will be liable for one-fourth. “The same will apply to the gear put aboard, including boiler and hoister and such other gear as it may be necessary for him to put.” The owners further agreed verbally that each of them, including Oacace, would advance or pay his one-fourth of the costs or expenses incurred in the venture. Subsequently W. O. Oobb purchased one-half of Briggs’ interest in the vessel. Oacace took charge of the work in March, 1904, and the work was continued until October of that year when the effort to float was abandoned, the vessel was stripped and the machinery and implements purchased and used in the work sold. The proceeds of those sales were applied to the payment of the expenses incurred in the effort to float the vessel, as were also the sums paid or advanced by the owners during the progress of the work. ■ The bill alleges that Oacace, Barnett and Twohy each paid his one-fourth of the expenses incurred, but that Briggs and Oobb only paid in part what was due from them, and that this — 407 — balance due from them was advanced by Barnett and Twohy who bring this suit against them to recover the same. The trial court was of opinion that they were entitled to the relief sought and so decreed. The first error assigned is that the trial court erred in overruling the appellant’s exceptions to the commissioner’s report, which allowed Cacace large sums for personal services, and also upon the ground that he had purchased various articles from himself while attempting to float the ship. It seems to be well settled that the owners of a ship are tenants in common, unless it was acquired by them as partners, or with the intention of holding it as partnership property. Freeman on Cotenancy, sec. 379; 3 Min. Inst. 801; 1 Parsons on Maritime Law, 82; Hughes on Admiralty, sec. 158. The owners of the ship were not partners when they purchased the vessel, nor does it appear that it was intended to be held as partnership property. It seems to be a concession in the case that the owners were not partners, but tenants in common. Hot being a partner but the agent of the owners of the vessel in their efforts to float it, Cacace was clearly entitled to reasonable compensation for his services, although there was no express contract to that effect. Where one renders service for another at the latter’s request, the law, in the absence of an express agreement, implies a promise to pay what the services are reasonably worth, unless it can be inferred from the circumstances that those services were to be rendered without compensation. There is nothing in this ease to take it out of the general rule, and the compensation allowed Cacace'under the evidence was not unreasonable. Under the facts and circumstances disclosed by the record, there was no error in permitting Cacace to charge his co-owners with the boiler and engine and certain other articles belonging to him and used in the work. By the terms of the original agreement he was authorized to use his own barge — 408 — and his own “gear" as far as was necessary for floating the vessel, and the evidence shows that the articles furnished by him and charged to the joint owners was done at their request or with their knowledge and assent. The action of the court in holding Briggs responsible for his share of the expenses incurred after he gave written notice that he had decided not to “gamble” longer in the effort to float the ship and did not wish to incur any further expense on that account, is assigned as error. There was some correspondence between Briggs and his co-owners on the subject of stopping the work, but the conduct of the parties subsequent to that correspondence, especially the conduct of Briggs, is inconsistent with the theory that he was no longer interested in the effort to float the ship. He was clearly responsible for his one-fourth of the expenses incurred until he sold one-half of his interest to Oobb; after that sale he was liable for one-eighth of the expenses subsequently incurred. The court held Oobb responsible for one-eighth of the expenses arising after his purchase. This he assigns as error. Oobb agreed to pay one thousand dollars for the interest purchased by him. So much of this sum as was necessary to pay Briggs’ share of the expenses up to that time was to be paid on that indebtedness, and the residue was to be paid to Briggs. All of it was paid by Oobb toward the expenses incurred and credited to Briggs by the commissioner in his settlement without objection from Oobb. After Oobb became interested in the vessel he was present and knew that efforts were still being made to float her, and made no objection. He must, therefore, be considered as assenting to the work and be held responsible for his share (one-eighth) of the expenses incurred after he became interested; and the court did not err in so holding. The appellants, Briggs and Oobb, insist that even if they were responsible for their respective shares of the said expenses, Barnett and Twohy were under no obligation to pay the same, — 409 — nor were they requested to do so; and that the court erred in decreeing that the appellants should pay the same to them. It seems to be well settled that the powers and rights of co-owners of ships are in general essentially the same as in the case of other tenants in common in any other chattels. Freeman on Cotenancy, see. 385; 3 Min. Inst. 803. In the absence of special contract, it seems to be settled law that where the ship’s husband, who is the common agent of all the owners, is not a part owner of the ship, all the owners are responsible in solido for his just expenditures and charges; but where he is part owner each is liable only for his own share of such expenditures and charges. 1 Parsons on Mercantile Law, 100; 3 Min. Inst., 832-3; Holmes v. Smith, 7 Bing. 709; Brown v. Tapscott, 6 M. & W. 119. Oacace, who was the common agent of the owners of the “Hyde” was not only a part owner, but by the terms of the special agreement under which he was acting, as we understand it, it was expressly agreed that each of the co-owners was to pay his share of the expenses to be incurred by Oacace. This we think clearly appears from the written and oral testimony in the case as to the agreement. The undertaking, therefore, of each to pay was several and not joint, nor joint and several. 3 Min. Inst. 390-1; 1 Chitty on Cont. 139; 3 Rob. Pr. (New) 99-100; Williamson v. Chiles, 5 Iredell, 244; Larkin v. Butterfield, 29 Mich. 254; Fell v. Goslin, 7 Exc. 185. This being so, neither of the co-owners was under any obligation to pay more than his own share of the expenses due to Oacace for services rendered and materials furnished by him. If Barnett and Twohy, or either of them, made payments to him on account of the sums due him from Briggs and Cobb respectively, unless such payments were made at their request (and this is not claimed), they were mere voluntary payments and furnish no cause of action either at law or in equity. An action of assumpsit will not lie for money paid, for no assumpsit will be raised by the mere voluntary payment of the debt of another. 2 Chitty on Contr. 882; 3 Min. Inst. 359-60. — 410 — [Neither would such payments give the right of contribution in equity, for the essence of contribution is that there shall be a joint liability, or a joint and several liability; but where parties are severally bound for a specific portion of a debt as principals, and one pays more than he is bound for, he is entitled to no contribution from the others for such excess. 6 Pom. Eq. Jur., sec. 916; White & Tudor’s Lead. Cas. in Eq. Vol. 1, Pt. 1, p. 150-1; Janney v. Stephens, 2 Pat. & H. 11. So far as Barnett and Twohy, respectively, made payments in excess of their own liability to persons who had no notice of the special agreement by which the liability of the co-owners of the vessel was limited to his own share of the expenses, they would be entitled to contribution from the other owners; for as a general proposition it seems that a part owner of a vessel in undisputed possession will be regarded as having implied authority to bind the other owners for things necessary for the vessel and its employment, unless there is something in the evidence (as there is not in this case) to show that such implication of agency is contrary to the fact. 25 Am. & Eng. Enc. L. (2nd ed.) 885. The refusal of the court to recommit the report of the commissioner, in order that a detailed and itemized statement of the accounts might be made up, is assigned as error. It is unnecessary to consider whether or not the court erred in that respect, as the case will have to be referred to a commissioner when it is remanded, to ascertain what sums if any were paid by Barnett and Twohy, or either of them, to persons other than Oacace in excess of their own share of the indebtedness due to such persons. When this is done a detailed and itemized statement of the expenses incurred can be made by the commissioner. Conceding that Barnett and Twohy had an ample remedy at law for the claim asserted by them in their bill, they had the right to proceed in equity, for the jurisdiction assumed by courts of law to enforce contribution in some cases does not — 411 — affect the jurisdiction originally belonging to a court of equity. Wayland v. Tucker &c., 4 Gratt. 267, 50 Am. Dec. 76. The other errors assigned need not be specially considered as the questions involved in them have been decided in disposing of the other assignments of error. The decrees complained of must be reversed, and the cause remanded for further proceedings not in conflict with this opinion.