Brooks v. Mintuen
| Decision Date | 01 June 1851 |
| Citation | 1 Cal. 481 |
| Parties | BROOKS ET AL. v. MINTUEN. |
| Court | California Supreme Court |
APPEAL from the Superior Court of the City of San Francisco. The facts will be found in the opinion of the Court.
——, for Plaintiffs.
A. T. Wilson, for Defendant.
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 British brig Ocean," and the defendant, and is signed by Smith & Lewis as principals, and not as agents. The plaintiffs, being the owners of the ship, bring the action to rceover 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 with 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 proving 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 prima 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's Comm. 150; Bixby v. The Franklin Insurance Co. 8 Pick. 86.) It is clear, from these authorities, that the register of a ship is frequently given in evidence, and without attempting to enumerate the cases in which it may, and in which it may not be introduced, I am of the opinion that is it admissible in favor of the persons claiming to be owners, in connection with other evidence tending to establish the ownership. Mr. Greenleaf, in his work on Evidence (1 Vol. Sec. 494), it is true, says, that in favor of the person claiming as owner, the register is no evidence at all, being nothing more than his own declaration, but Mr. Justice Bayley, in Tinkler v. Walpole (14 East, 226), one of the cases cited by Mr. Green-leaf, says, that the registering of a vessel by an owner in his own name may be prima facie evidence for him that he is owner, because he thereby publicly challenges all persons that he is so; and he distinguishes such a case from one where a person is sued as owner, and the claim is attempted to be supported by such evidence made without his knowledge, and which he has not adopted.
The objection that there was no proof that Smith & Lewis executed the charter party is untenable. That fact was admitted by the...
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