Kelly v. Dickinson

-Scott, J., delivered the «pinion of the court. This seems a very hard case, when it is considered that Darrah & Pomeroy are the only parties against whom a judgment has been rendered. Dickinson, who Really wronged the plaintiff, is now no longer a party to the record- The case of Robinson vs. Campbell, 8 Mo. Rep., •365, is not applicable. That case only declared the strict rights of a mortgagee of personal property after a forfeiture, if he saw proper to assert those rights against a mortgagor. The question then is, who was the owner of the boat in the sense that would make him liable for the acts of his agent, the captain ? Dickinson, the rnorgagor, who was in possession of the boat and commanded her, and who made the contract with the plaintiff Kelly; or Darrah & Pomeroy, who were the mortgagees; entitled to a portion of the profits of the boat in discharge of their mortgage debt, taking a concern in her well doing on that account, and receiving a statement of her earnings? Without, however, going [198] further into the matter, we are of opinion, that the court erred in refusing that instruction, asked by the defendants, which declared that the captain of a boat, as such, has no right to sell the boat or any part thereof, without special authority therefor from the owners. The instructions given did not supercede the necessity of giving this one. The evidence, as it appears on the record, clearly shows, that the captain, as such, by no usage or custom was authorized to sell the bar of a. boat so as to give to the vendee an interest in the boat itself as part owner. Such a usage would be unreasonable, nor is it a power necessary to the captain in the discharge of his duties to the owner. It might be a great injury to a boat that a bar keeper had a permanent interest in her, so that he could not be controlled by the owner. It would be in his power to destroy her reputation as a passenger boat and there would be no remedy. The captain, as such, may employ a bar-keeper, or grant the privilege of keeping a bar, so long as he is concerned with the boat, But in such cases, the bar-keeper is on the footing of others engaged in her service, and must be. under that supervision, entrusted to the captain for the benefit of all who are interested in the boat. This is a sufficient quantum of power to the captain, to enable him to discharge his duties to his employers, and it would he unsafe to the owners to countenance the exercise of any authority by the captain, which is not necessary to a full performance of the duties imposed on him. The other judges concurring, the judgment is reversed and the cause-remanded.