Jarvis v. Noyes , 45 Me. 106 ( 1858 )

The opinion of the Court was drawn up by

Goodenow, J.

The report presents only one question for the decision of the Court, which is, whether an action of account can or cannot be maintained, upon the facts stated. It is admitted, or proved, that the plaintiff was owner of one-eighth part of the Eglantine, and that the defendant was also part owner of the same vessel; that the defendant had no written authority from his co-owners, to act as agent of the vessel, but that he had always acted as such, had received her earnings, had paid some of her bills, (the master having also paid a part of them,) and had paid out, at different times, several sums, from her earnings, to the respective owners ; and that, in April, 1854, the defendant stated to the plaintiff, that there was in his hands six hundred dollars of the earnings of the vessel, belonging to the owners.

It was also proved that there had been no settlement among the owners of said vessel; that she was sold by them in April, 1854, and that the plaintiff, the defendant, Mark H. Perkins, Svlvanus Rich, John Dresser, and Samuel W. Hall, were part owners of her, and that separate actions of account had been commenced by said Perkins and Rich, to recover their respective shares of the earnings, of said vessel, against the defendant, which actions are now pending. Said vessel was sailed on shares, and the earnings, in the hands of the defendant, were received by him of the master.

The form of proceeding by “ an action of account” was recognized in Massachusetts before the separation of Maine. It has been expressly recognized in this State. In Hardy v. Sprowl, 33 Maine, 508, Mr. C. J. Shepley says, “If no other mode can be agreed upon, the remedy is by action of account.” It is recognized by our statutes, and the mode of proceeding somewhat changed and simplified. When the interlocutory judgment has been rendered that the defendant do account, and he shall unreasonably neglect to appear, or appearing, to render an account before auditors appointed to take it, they shall certify the fact, and the Court may enter a default and judgment thereon, or cause the damages to be assessed by a jury. R. S., c. 82, § 62.

This form of proceeding may now be regarded as more simple and direct, in producing an adjustment of accounts between persons who may not sue or be sued in an action of assumpsit, than a bill in equity; and it may be precisely for this reason that it is still preserved; notwithstanding it “ has fallen into disuse,” as Professor G-reenleaf says, “ in most of the United States.” It is, he admits, a legal remedy, where not abolished by statute.

We are inclined to the opinion, from the evidence reported, that the plaintiff is entitled to recover of the defendants as receiver only, and not as bailiff; that is, the amount he has actually received, and not the amount he might have received.

An action of account lies against a bailiff, not only for what profits he hath made and raised, but also for what he might have made and raised, by his care and industry, his reasonable charges and expenses deducted. Co. Lit. 172.

One merchant may have account against another, where they occupy their trade together; and, if one charges me as bailiff of his goods ad merchandizandum, I must answer for the increase, and be punished for my negligence; but if he charges me as receiver, ad computandum, I must be answerable only for the bare money or thing delivered. Co. Lit. 272.

The case finds that the defendant “ had always acted” as' agent of the vessel, &c. From these facts, we think his appointment by the plaintiff may be fairly inferred. In Sargent v. Parsons, 12 Mass. 148, Parker, C. J., says: — “ The action of account is maintainable only against a bailiff; and a bailiff can only be one who is appointed such, or who is made such by law, which latter instance applies only to a guardian, who is bailiff of his ward, and who is liable, not only for rents and profits actually received, but also for those which might have been received by a proper management of the estate. The plaintiff may deem it expedient to ask leave to amend.” 2 Greenl. Ev. § 36.

• The defendant is ordered to account, and the action is to stand for further proceedings.,

Tenney, C. J., Eioe, Hathaway, Appleton, and Cutting, J. J., concurred.