Bissel v. Torrey , 65 Barb. 188 ( 1873 )

By the Court, Mullir", P. J.

The only questions to be considered in this case are, as to whether the defendants, or either of them, is liable to the plaintiff for the negligence that occasioned the loss of the plaintiff’s boat.

It is an undisputed fact in the case that the Alice Price was owned by the Neversink Steamboat Company, and that company had chartered her, for the season of 1860, to S. W. & W. A. Torrey, to be run between New York and Monmouth. E. Cornell White testifies that he was the secretary of the steamboat company, and that its affairs were managed by an executive committee of three of the stockholders, of whom he was one. They chartered the steamboat to the Messrs. Torrey at a certain price for the round trip; the company to employ and pay the men, and the Messrs. Torrey to receive the earnings of the boat, after paying expenses.

About the 1st of October, it was proposed to run the Price as a tow-boat, between Troy and Hew York, instead of between Hew York and Monmouth, and there was some change in the amount to be paid for her use. But the owners remained obligated to man and furnish her, until the expiration of the time for which she was chartered. The money received for the 'use of the boat was paid to a firm of which White was a partner, and by them passed to the credit of the steamboat, and out of it were paid the expenses of running her.

William Torrey testifies that after the first of October, I860, the Price was run for him, the earnings were paid to his sons who had the charter for the season, and they paid the expenses. The obligation of the steamboat company to furnish men and manage the boat does not appear to hyve been changed.

Some stress is laid, by the plaintiff’s counsel, upon the fact that White made the contract with Torrey, and assumed to man and run the boat from the 1st of Oc-' tober, till the 15th of December, when the original charter expired. It appears that William Torrey prepared a writing, and submitted it to Mr. White, by which White assumes, as between him and Torrey, the obligation to man the boat. But that writing was never signed by either party. Torrey, however, urges that the boat was run in conformity to it.

If Whité had signed the agreement drawn by William Torrey, as’between them, he would have been the party bound, and not the steamboat company. By not signing it he was at liberty to show in what capacity he a'cted in making the contract. Torrey must have known that White was not acting for himself, but. was acting for the steamboat company. ■ This appeared by the original memorandum, which constituted the charter between the company and the Messrs. Torrey. It appeared by the documents in the custom-house, relating to the title to the boat, and I do not find that Mr. Torrey denied knowledge of the character in which White acted.

• [Fourth Department, General Term, at Rochester, April 1, 1873.

Mnttin, Talcott and E. D. Smith, Justices.]

There is evidence that White said he was owner, or the largest owner, of the Price, and that he was liable to the plaintiff for the loss of his boat. It was true that he was the largest owner, but whether he was liable for the loss of the boat, was a question of law, as to which, he was not concluded by his opinion, especially if it was erroneous.

Upon the whole case, I cannot doubt but that the steamboat company was the party who employed and paid the men, who managed the Price at the time of the injury to the plaintiff’s boat.

I do not think that the evidence that any'other person or party was liable, would sustain a verdict finding that fact. All that was said and done by White isl consistent with the liability of the company, as he was managing agent and officer of it, and receiving for his services an annual salary.

The plaintiffs’ counsel insists that this action is Drought on the contract, and the breach of which is negligence in the performance .of it, whereby the plaintiffs’ boat was lost.

The contract to tow the plaintiffs’ boat was made with William Torrey, if his testimony is correct, and it was him alone that was liable for a breach of it. For negligence of those employed on the towing boat, its owners alone were liable, and the action agaipst them would not be on the contract, but for the breach of duty to tow safely.

We do not discover jhat the case is changed from what it was when before us at a former term, and we must deny the motion for a new trial, and order judgment of nonsuit in favor of the defendant.