Jernegan v. Osborn

• Decision Date: 06 January 1892
• Citation: 29 N.E. 520,155 Mass. 207
• Parties: JERNEGAN v. OSBORN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 207

29 N.E. 520

JERNEGAN v. OSBORN et al.

Supreme Judicial Court of Massachusetts, Bristol.

January 6, 1892

Action of Jared Jernegan against Samuel Osborn Jr., Joseph A. Beauvais, and Citizens' National Bank. Plaintiff was joint owner with defendants of a whaling vessel Europa, which returned from a voyage to the Arctic ocean August 17, 1872. During her voyage the Europa aided in rescuing seamen, and sustained losses by abandoning her business of whale catching. On August 28, 1872, plaintiff sold all his interest in the Europa to Samuel Osborn, Jr., as follows: "One-sixteenth part of said ship or vessel as was laying at this port on her arrival here from her last voyage, exclusive of cargo or oil on board, together with one-sixteenth part of the sails, boats, anchors, cables tackle, furniture, and all other necessaries thereunto appertaining and belonging." On May 22, 1874, plaintiff executed to Samuel Osborn, Jr., the following conveyance "I hereby sell, transfer, and convey unto said Osborn all my right, title, and interest to and unto all my remaining interest of one-sixteenth part of ship Europa's last voyage, of every description, including all my right or claim unto the several items of said voyage, such as all my right and title to any claims by the owners of said ship against the United States government and Hawaiian government for all money that has been or may be hereafter collected of one or both; also for any disputed claim, or otherwise, to commissions in the accounts of said Osborn with the owners of said vessel; also all claims, rights, and title that I may have against the insurance companies for claims of partial loss, under any policy or policies in my favor, from August 1871, to the close of the voyage of said ship, on ship and outfits; also all my right, title, and interest to any reserve fund or funds for owners or crew in the hands of said Osborn, or for any and all claims, of whatever name or nature, growing out of my ownership in said ship's voyage, or any credits in said ship's voyage, from beginning to the end of her last voyage,--this being a compromise sale and settlement of all matters pertaining to ship Europa." By an act approved February 21, 1891, concerning the Europa and other vessels, congress appropriated $33,889.16 "to the owners of the vessel Europa, in full compensation for losses sustainedand services rendered by them in abandoning their business of whale catching, and rescuing nine hundred seamen in the Arctic seas." "That said moneys shall be paid over to the owners, *** for the benefit of themselves, and of such of the officers and crews *** as were engaged in that particular season of the cruise in the Arctic ocean during which said rescue was made, and such moneys shall be distributed by the owners between themselves and said officers and crews in the proportion to their respective lays, and in the same manner as the ordinary earnings from the said cruise would have been distributed. The secretary of the treasury shall not be bound to see to the application of said moneys by the owners." Plaintiff claimed that the assignment of his interest in the sum appropriated by congress was void, under Rev.St.U.S. § 3477, as follows: "All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities, for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignment, and powers of attorney must recite the warrant for payment." Plaintiff seeks to recover his share of the $33,889.16 as owner at the time of the rescue. Judgment for defendant. Plaintiff appeals. Affirmed.

COUNSEL

A.M. Goodspeed, for plaintiff.

C.W. Clifford, for Osborn.

H.M. Knowlton, for other defendants.

OPINION

MORTON J.

In the view which we take of this case, it is not necessary to consider whether the award would have been distributable among the owners of the ship as partners in the voyage or as owners of the ship. We do not think the plaintiff can maintain his bill on either ground. He conveyed all his interest in the ship to the defendant in August, 1872. He also conveyed all his interest of every description in the voyage, including claims against the United States, to the defendant in May, 1874. This conveyance was in the most general terms of all claims growing out of his ownership in the voyage, and is said in the instrument to be "a compromise sale and settlement of all matters pertaining to the ship Europa." As to this conveyance the plaintiff says, in the first place, that the amount awarded by congress to the owners of the Europa was a gratuity or donation in which the plaintiff could, in the nature of things, have no assignable interest, and, in...