Strong v. Saunders

• Decision Date: 30 April 1867
• Court: Michigan Supreme Court
• Parties: H. Norton Strong v. Jeremiah Saunders

15 Mich. 339

H. Norton Strong v. Jeremiah Saunders

Supreme Court of Michigan

April 30, 1867

Heard April 23, 1867 [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action of assumpsit, brought to obtain compensation for the use of certain range lights placed on the St. Clair flats by defendant in error, to aid vessels in navigating the channel.

The declaration was on the common counts.

Defendant pleaded the general issue.

The facts, together with the exceptions taken to the rulings of the court below, are stated in the opinion.

Judgment was rendered for plaintiff in the court below, and the case comes up for review as to the correctness of the rulings.

Newberry & Pond, for plaintiff in error:

1. The first and second assignments of error can be considered together, as they relate to the admission of testimony of the same nature, to wit: Testimony tending to show that the defendant paid plaintiff for the use of said range lights, by the tug "Bob Anderson," in the year 1863.

This testimony was clearly irrelevant. The fact that defendant paid for the use of these range lights in the year 1863 by the "Bob Anderson," would not justify the inference that he promised to pay for the use of them for the "I U. Masters," in 1864.

2. The fourth and sixth assignments of error may also be considered together.

The fourth is based upon the refusal of court to instruct the jury that under the facts no promise by Strong to pay for the use of said range lights could be implied. And the sixth, upon the instruction given, that it was for the jury to determine, from the evidence, whether there was any promise, express or implied.

We think it clear that the court erred in refusing to give the instruction asked, but whether this be so or not, the instruction given was clearly erroneous.

a. An "implied promise" is a promise created by the law from a given state of facts; and hence, the facts being conceded, the question whether or not the law created a promise, is pure question of law.

And we insist that the facts, as claimed by plaintiff, were not such that the law would create from them an implied promise by Strong to pay for the use of said range lights; and hence, that the instruction asked should have been given.

b. The instruction given left it to the jury, first, to determine the facts; and, second, whether, from the facts, as they should find them, the law would create an implied promise by Strong.

This was clearly erroneous.

3. The question involved in the consideration of the seventh and eighth assignments of error, is whether the subscription for the use of said lights signed by "W. H. Littleton, master of tug I. U. Masters," was binding upon defendant, as a contract made by him through his agent.

We submit that it was not so binding. Defendant's name nowhere appears upon it, and the promise is by Littleton. The words "master tug I. U. Masters," after his name, are to be taken only as descriptio personoe: 1 Amer. Lead. Cases (4th ed.), 623; 1 Pars. on Cont., 48, note A; 11 Mass. 27; 8 Met. 456; 9 N. H., 263; 3 Wend. 94; 10 Id. 271; 5 Sandf. 101; 4 N. Y., 208; 9 Id. 571.

4. The master of a vessel, as such, undoubtedly has authority to bind her owner, or owners, by any agreement necessary and proper to be made in regard to such vessel, in and about her usual and ordinary course of business. But, we insist that an agreement to pay for keeping up said range lights was not such an agreement any more than would be an agreement to pay a certain sum towards building or sustaining a light-house: 1 Pars. Merc. L., 383.

We submit that the judgment below should be reversed.

Judgment reversed, with costs, and a new trial awarded.

Moore & Griffin, for defendant in error:

1. If Strong paid for the use of the lights in 1863, and availed himself of the benefit of them in 1864, knowing that Saunders expected compensation for such use, and without notice to Saunders that he should not pay, the law raises an implied assumpsit on the part of Strong to pay for the benefit he derived from the lights in 1864.

If Strong acknowledged the benefit of the lights in 1863 by paying for them, from this the law infers or deduces that he intended to pay for them in 1864, if he used them: Story on Cont., § 11, et seq.; 1 Pars. on Cont., 4; 2 Greenl. on Ev., §§ 107, 108.

It was competent to introduce in evidence the bill against the tug certified to by the master, W. H. Littleton, as there was evidence before the jury of an express promise on the part of Strong on condition that such certificate should be produced.

It was also proper evidence to show that the amount charged by Saunders were the figures which Littleton, as master, made for the use of the lights for tug I. U. Masters during the season of 1864.

The fourth, fifth and sixth assignments of error relate to the charge of the court, and may be considered together.

There is certainly evidence, if believed by the jury, which justifies them in finding an implied promise.

There is also evidence, if believed by the jury, that justifies them in finding that keeping the range lights was beneficial to plaintiff in error, and if they so found, it was a sufficient consideration to support an express promise: 2 Greenl. on Ev., § 107, above cited.

The second and third requests were properly refused.

The defendant in error was entitled to a stronger charge than the one alleged as error in the sixth assignment. He was entitled to the charge that if the jury believed the testimony of the witnesses of defendant in error, they must find both an express and an implied promise.

The jury must have believed this evidence, to have found their verdict, and as, therefore, no injury resulted to the plaintiff in error, this court will not reverse the judgment, even if the charge were not technically correct.

2. The general rule as to the authority of the master is, that owners of vessels are bound by contracts of the master, relative to the usual course of ships' employment: Abbott on Shipping, pp. 164-167; 3 Kent (last ed.), 220, et seq., and notes; Conk. Adm., 74, 75; Ware's Rep., 194.

These authorities indicate and decide that whatever contracts relate to the employment or navigation of the vessel or to supplies, repairs or necessaries, furnished to her are binding upon the owner, though made by the master.

The evidence in this case discloses facts which bring the contract made by Littleton within the rule.

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