Terry v. Brightman

• Decision Date: 30 March 1882
• Citation: 132 Mass. 318
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Joseph C. Terry v. James M. Brightman & another

132 Mass. 318

Joseph C. Terry v. James M. Brightman & another

Supreme Court of Massachusetts

March 30, 1882

Argued October 26, 1881

Bristol. Contract against James M. Brightman and William H Clay, to recover $ 2400 for the charter of the steamer Border City. After the former decision, reported 129 Mass. 535, the case was tried in the Superior Court without a jury, before Allen J., who reported the case for the determination of this court in substance as follows:

The plaintiff was the agent of the owners of said steamer; and on September 6, 1877, as such agent, entered into an indenture with the defendants for the chartering of said steamer, a copy of which is printed in the margin. ^[*]

At the time of the making of this indenture, and at the time this action was brought, there were nineteen part-owners of said steamer. The plaintiff was the owner of two thirty-second parts and the defendant Brightman was the owner of thirteen sixty-fourth parts. The other defendant, Clay, was not an owner. Clay was defaulted, and Brightman alone defended the action, and contended that, upon the foregoing facts, the plaintiff could not recover in this action in his own name.

The judge found for the plaintiff in the sum of $ 2250.51. If the action could be maintained, judgment was to be entered for the plaintiff; otherwise, for the defendant.

Judgment for the defendant Brightman.

A. N. Lincoln, for the defendant.

J. M. Morton, for the plaintiff.

Field, J. Morton, C. J., W. Allen & C. Allen JJ., absent.

OPINION

Field, J.

If neither Terry nor Brightman were a part-owner of the steamer, Terry could not maintain an action at law on the agreement, because the covenants are not with him, or, if the seals are disregarded, the promise is not to him; the agreement is between the owners of the steamer of the first part, and Clay and Brightman of the second part, and does not purport to be between Terry as one contracting party, and Clay and Brightman as the other. Chesterfield Colliery Co. v. Hawkins, 3 H. & C. 677, 692. Rogers v. Union Stone Co. 130 Mass. 581. Exchange Bank v. Rice, 107 Mass. 37. Fairlie v. Fenton, L. R. 5 Ex. 169. Montague v. Smith, 13 Mass. 396, 404. Abbey v. Chace, 6 Cush. 54. Goodenough v. Thayer, ante, 152.

As Terry was one of the owners and Brightman was another, Terry cannot maintain this action as one of the owners. He cannot sue as part-owner without joining the other part-owners with him as co-plaintiffs; and, if all the owners were joined as plaintiffs, Brightman would be both a plaintiff and a defendant. The agreement, having been made by all the owners jointly with one of their own number, cannot be enforced at law. Eastman v. Wright, 6 Pick. 316. Thayer v. Buffum, 11 Met. 398. Hatsall v. Griffith, 2 Cr. & M. 679. Chanter v. Leese, 4 M. & W. 295.

The agreement cannot be construed as having been made by all the owners but Brightman as party of the first part, for the purpose of chartering and letting their portions of the steamer to Clay and Brightman; it purports to charter and let the whole steamer, and the money to be paid therefor is distributable among all the owners.

Judgment for the defendant Brightman.

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Notes:

^[*]"This covenant, made and concluded in Fall River on the sixth day of September, A. D. 1877, between the owners of the steamer Border City, Joseph C. Terry agent, of the burthen of one hundred tons or thereabouts, now lying at Fall River, parties of the first part, and W. H Clay of Port Orange, Florida, and J. M. Brightman of said Fall River, parties of the second part, witnesseth, that the said parties of the first part, in consideration of the covenants and agreements hereinafter mentioned to be performed...