1 Haw. 47 (Haw.Super. 1851), Archer v. Makee

Citation:1 Haw. 47
Opinion Judge:LEE, CHIEF JUSTICE
Party Name:JOHN ARCHER ET AL. v. JAMES MAKEE ET AL.
Attorney:Mr. Montgomery for plaintiff. Mr. Bates and Mr. Burbank for defendants.
Case Date:April 01, 1851
Court:Superior Court of Hawai'i
 
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Page 47

1 Haw. 47 (Haw.Super. 1851)

JOHN ARCHER ET AL.

v.

JAMES MAKEE ET AL.

Superior Court of Hawai'i.

April 1, 1851

         Syllabus by the Court

          A suit upon a written contract made by the master of a ship in his own name, cannot be brought in the name of the owners, their name not appearing in the contract, but must be brought in the name of the master.

          Mr. Montgomery for plaintiff.

          Mr. Bates and Mr. Burbank for defendants.

         OPINION

          LEE, CHIEF JUSTICE

         This was an action brought to recover damages (laid at $10, 000) for the non-fulfillment of a certain contract respecting a cargo of Newcastle coals.

         The plaintiffs offered in evidence, as the foundation of their action, a contract entered into between Charles Cobb, master of the barque " Elizabeth Archer, " and Makee, Anthon & Co., by which Captain Cobb bound himself to proceed with all possible despatch from Honolulu to Sydney, take in a certain number of tons of coals, and return to Honolulu. On his return, Makee, Anthon & Co. were to pay him $21 per ton for the coals delivered.

         The defendant's counsel objected to the reading of the contract to the jury, on the ground that the plaintiffs were not parties to it, and could not bring this action upon it. They contended that Makee, Anthon & Co. contracted with Charles Cobb, and not John Archer and others, and that the action if brought at all should be brought in the name of Charles Cobb.

         To this the counsel for the plaintiff replied, that Captain Cobb was simply the agent of John Archer and others, the owners of the barque " Elizabeth Archer, " and that he acted in that capacity, in chartering the vessel, was clearly deducible from his describing himself in the contract, as " Master of the barque...

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