Merrill v. Williams

Per Curiam. It appears from the complaint that this action is upon the following agreement in writing, signed by plaintiffs assignors and defendants: —

“1. To ascertain the amount received by Ferris from inward freight on the Tartar.

“ 2. To ascertain the amount collected on account of general average by Ferris.

“ 3. To ascertain the amount ‘due charterers, under general average, for coals jettisoned during voyage from Australia to San Francisco.

[71]“These above amounts being ascertained, W., B. & Co., agents for owners, do agree with J. C. M. & Co., that in case it shall be determined that the owners of the Tartar have no lien or claim prior to Merrill & Co., under the charter party, to said moneys, the same shall be paid over to J. C. M. & Co. in satisfaction of so much of any judgment J. C. M. & Co. may recover against the Austral. & M. S. S. Co., or said Forbes et al., now in suit in the Twelfth District Court (case 18,308).”

Defendants had judgment in the court below, and we think the proceeding should be sustained.

The contract did not impose any personal liability upon the defendants, but was simply an agreement on their part that in a certain event moneys in the hands of Ferris should be paid over to Merrill & Co. As the agents of the Tartar, defendants agreed, “in case it shall be determined that the oivners of the Tartar have no lien or claim prior to Merrill & Co., under the charter party, to said moneys, the same shall be paid over to J. C. M. & Co.” Paid over by whom? Not by defendants, because they did not have the money. The contract merely amounts to a stipulation on the part of the defendants that in case no claim or lien should be established in favor of the ship, the defendants, as the agents thereof, Avould relinquish all claim to moneys collected by and in the hands of Ferris.

Judgment affirmed.

Hearing in Bank denied.