Nugent v. Locke

Appeal from the Superior Court of the City of San Francisco.

The complaint set forth a contract in these words: The said parties, on said date, purchased the bark called the Sarah Hooper, from Messrs. McKinley, Garrioch & Co., of San Francisco, for the sum of six thousand and five hundred dollars, to be paid in the following manner: four thousand dollars in cash at the time of delivery of said vessel, and the balance in fifteen days, at which time a bill of sale of said vessel was to be made to the said Nugent and Locke, in the following manner, viz: the said Locke was to be the owner, in said bill of sale of said vessel, of two-thirds of said vessel, and plaintiff was to be the owner in the bill of sale of one-third of said vessel. It was also agreed by and between the parties, that S. A. Drake was to act as agent for the said vessel until she was ready for sea, when their accounts were to be settled according to the ownership of each party, and further arrangements entered into for future operations. It was further understood, as part of the agreement between the said parties, that the intent and object of the purchase of the said bark by the said parties was, that she should be put up as a passenger vessel for Sydney, New South Wales, and that from the profits or results to arise from passage money, freight and other matters connected with her intended voyage, the said cost of said vessel, or purchase money, was to be paid. Any actual profits shown to exist on closing the accounts in San Francisco, were to be divided between the parties after deducting all the expenses of the voyage, outfit, cost of vessel, and other expenses; and in case the said profits to result from the intended voyage, after deducting the expenses * of outfit, etc,, were not sufficient to pay the said [319] purchase money of the said vessel, then and in that event, the said Moses P. Locke and John S. Nugent were to pay in cash their proper proportions, in accordance with their interests in the vessel, to discharge the debt_so due upon the vessel.

The complaint alleged that, in pursuance of the above contract, a ship called the Sarah Hooper was purchased, and that plaintiff had expended time, labor and moneyupon her, and in all respects had performed his part of the above contract, and stated that the defendant Drake, had acted as ship’s husband. The complaint charged that the defendant Locke, refused to acknowledge the plaintiff as part owner of the vessel, and to perform, and had violated his agreement with the plaintiff, and asked for a decree directing a bill of sale of one third of the vessel to be made, as per agreement, and an account of the profits and damages.

The defendant denied generally the allegations of the complaint.

The cause was referred to E. W. F. Sloan, Ésq., who reported as follows: