Brooks v. Minturn

By the Court,

Bennett, J. The demurrer put in to the complaint was overruled by the court, and the defendant filed his answer. The answer was, as has been heretofore held, a waiver of the demurrer.

Smith & Lewis chartered the ship Ocean to the defendant, to carry a cargo of coal from Panama to San Francisco. The charter-party in the commencement of it purports to be an agreement between “ Messrs. Smith & Lewis, consignees of the “ British brig Ocean” and the defendant, and it is signed by [482]Smith & Lewis as principals, and not as agents. The plaintiffs, being the owners of the ship, bring the action to recover the freight agreed to be paid by the charter-party, and the defendant contends that the owners cannot maintain the action in their own names, inasmuch as the contract was made with Smith & Lewis, and not with the plaintiffs. That Smith & Lewis would be personally liable to the defendant for a breach of the contract, had any occurred, there can be no doubt. The authorities are clear as to that matter. But the question presented here is, whether persons not mentioned in the charter-party can be shown, by extrinsic evidence, to be the principals in the contract, and can be allowed to avail themselves of its provisions. Upon this point there is a great conflict in the decisions, and it would be a vain attempt to endeavor to reconcile them all. The rule, which seems to be supported by the greatest weight of modern authority, is that which is laid down by Baron Parke, in Higgins v. Senior, (8 Mees. and Wels. 843,) that it is competent to show, that one or both of the contracting parties were agents for other persons and acted as such agents in making the contract, so as to give the benefit of the contract, on the one hand, to, and charge vrith liability, on the other, the unnamed principals. (See Story on Agency, secs. 269, 270, and notes; and the note to Thompson v. Davenport, 2 Smith's Leading Cases, 222.) According to the above doctrine the suit was properly brought in the names of the plaintiffs, they thereby adopting and ratifying the act of Smith & Lewis in making the charter-party.

At the trial the ship’s register was admitted in evidence, for the purpose of proring the plaintiffs to be the owners of the vessel. This evidence was objected to as inadmissible. I think the objection not well taken. The register of a ship is not conclusive evidence of ownership, perhaps not even primo facie evidence, but it is in some cases admissible as one item, in connection with other evidence, to establish the ownership. (Abbott on Ship, marg. p. 93, 94, and note; 2 Phillipp's Ev. 39, 40, 115; 3 Kent, Comm. 150; Bixby v. The Franklin Insurance Co. 8 Pick. 86.) It is clear, from these authorities, that the