Cragin & Co. v. International SS Co.

• Decision Date: 08 November 1926
• Docket Number: No. 16.,16.
• Citation: 15 F.2d 263
• Parties: CRAGIN & CO., Inc., v. INTERNATIONAL S. S. CO.
• Court: U.S. Court of Appeals — Second Circuit

15 F.2d 263 (1926)

CRAGIN & CO., Inc., v. INTERNATIONAL S. S. CO.

No. 16.

Circuit Court of Appeals, Second Circuit.

November 8, 1926.

Sobel & Brand, of New York City (Joseph I. Green, of New York City, of counsel), for plaintiff in error.

Hunt, Hill & Betts, of New York City (George C. Sprague and H. Victor Crawford, both of New York City, of counsel), for defendant in error.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

Admittedly nothing is due the plaintiff individually; it sues as trustee for brokers under Kokusai v. Argos (C. C. A.) 280 F. 700. The existence of the trusteeship depends on the truth or falsity of the assertion that plaintiff chartered defendant's vessel. The truth is that plaintiff did not so charter, but it is asserted here — and this is the gist of the whole case — that, because Suzuki & Co. (being defendant's agents) sued plaintiff as charterer and recovered judgment for the charter hire, defendant is now estopped of record from denying that defendant did so charter.

To put it another way, because Suzuki & Co., as agents for defendant, said that plaintiff was the charterer, in a suit against plaintiff which passed to judgment, defendant is now estopped; i. e., "concluded and forbidden in law to speak against his own act or deed, yea though it be to speak the truth." Asphitel v. Bryan, 3 Best & S. 474, quoting Co. Litt.

Let it be admitted that a default judgment is as efficacious as any, yet the nature of this judgment will bear examination. At law Suzuki, as agent, had no authority as such to sue in his own name (Mechem 2d Ed. § 2020; and see, especially, Buckbee v. Brown, 21 Wend. N. Y. 110); but, as the suit was in admiralty, Suzuki, as agent for absent owners, could so sue. The Thames, 14 Wall. 98 at 109, 20 L. Ed. 804; and see the cases collated in National, etc., Co. v. Emmons D. C. 270 F. 997.

Now, assuming that the suit was lawfully brought, the judgment per se binds only parties and privies. This defendant was no party, and, there being no mutual or successive relationship to property rights between agents and their principals, defendant was not in privity with Suzuki. Warner v. Comstock, 55 Mich. 615, 22 N. W. 64; Fogg v. Plumer, 17 N. H. 112; Hayes v. Bickelhoupt (C. C.) 24 F. 806; Chapman v. Waterman, 176 App. Div. 697, 163 N. Y. S. 1059; United States Bank v. Union Bank, 268 Pa. 147, 110 A. 792. For a case rather like this one, see Lawrence v. Ware, 37 Ala. 553. It follows that no plea of res judicata could have been sustained.

To be sure, there was no such plea, and the roll (or its admiralty equivalent) was offered in evidence by plaintiff to support its contention that it was the charterer, and therefore the trustee. Let this procedure be admitted as technically correct under Harms v. Stern, 229 F. 42, 145 C. C. A. 2, and cases cited. Then the result is that in this action plaintiff can only rest on the doctrine of Souffront v. La Compagnie, 217 U. S. 475, 30 S. Ct. 608, 54 L. Ed. 846, and assert that defendant prosecuted Suzuki's suit, and did it in the name of another to establish its own right, and is therefore as much bound by the resulting judgment as if it had been a party to the record.

As to this we observe no evidence whatever that defendant did anything of the kind, or that it even knew what Suzuki did; on this record, Suzuki only exercised his legal right to sue in admiralty, and did so on his...