Curtis v. Blanchard , 45 Me. 228 ( 1858 )

The opinion of the Court was drawn up by

Tenney, C. J.

This suit is for the recovery of the proceeds of the sale of one-sixth part of the bark “ A. G. Hill,” and is submitted on the following agreed facts: —

The plaintiff’s intestate was master of the bark in his life time, and, at the time of his death, was the owner of one-sixth part thereof. He died in July, 1856, and the plaintiff was duly appointed administratrix of his estate, which was represented insolvent, and she was duly licensed by the probate court to make sale of the portion of the vessel belonging to the estate. The whole vessel was sold at the same time, by Blanchard & Smith, who had been ship’s husband at the time of the decease of the intestate, and who have since acted as the agents of the other owners, in closing up the affairs of the bark. The agency given by the plaintiff to the firm to sell the bark was distinct from that under which they sold the parts belonging to the other owners; and the plaintiff, after the sale, executed a bill of sale of the portion sold under her authority. The sum received by Blanchard & Smith for the whole vessel was |5250, which came into their hands, Dec. 10, 1856. Blanchard & Smith had no interest in the vessel, as owners, but the defendant, as surviving partner of the late firm, remains the agent of the owners of the part of the vessel in which the intestate had no interest, for the purpose of closing up their concerns therein. Before the death of the intestate, the owners were six in number, having unequal shares in the vessel. They were indebted, at the time of the sale, on account, in bills for disbursements, commissions, supplies, &c., to third persons, contracted before the decease of the intestate, while she was engaged in general freighting business, extending back for several years, amounting to sufficient to absorb the proceeds of said sale, and the previous earnings of the vessel; these bills were charged to the vessel and owners, and Blanchard & Smith were not liable therefor. These claims, and those between the several part owners, are unadjusted, and the entire proceeds of the sale of the vessel and of a chronometer, have, since the sale, been applied by the defendant in payment of said unadjusted claims, by the direction of the surviving owners. The plaintiff seasonably demanded the proceeds of the sale belonging to the estate represented by her, before any part was paid as above stated, by the defendant, and objected that it should be so applied. The defendant refused to pay the plaintiff upon her demand, without consent of the other owners, which they declined to give.

It is not pretended in defence that the owners of the bark constituted a partnership. The facts disclose nothing which is an essential element in such a relation.

In the sale of the portion of the bark belonging to the estate represented by the plaintiff, the firm of Blanchard & Smith acted as her agents. They having acted at the same time as the agents of the other owners, in the sale of their respective portions of the vessel, cannot, in the least, change their relations with her, or affect their rights or obligations, existing under her authority. By accepting the agency from her to make sale of the sixth part in her charge, they were bound to account to her for the proceeds, and they cannot, effectually, set up the adverse claims of other owners to defeat this obligation. Story on Agency, § 217, and authorities in note (2.)

The case is before us on a statement of facts, signed by the parties, and we can assume no fact to exist, unless it makes one, agreed by the parties, or is necessarily inferrable from those admitted. It is not agreed that those having bills against the owners, charged to the vessel and owners, have a lien upon the bark, and it certainly cannot be necessarily inferred from any thing in the case. If there was a lien, it may have been waived, so that it cannot be enforced. We must treat the case as it would be treated if it was expressly agreed that, the creditors of the owners had no lien upon the bark.

If the several unadjusted claims of the respective owners, and their liability to third parties, could not be arranged and settled amicably between themselves, it is well established that suits at law for such purpose cannot be maintained. Maguire v. Pingree, 30 Maine, 508; Knowlton v. Reed, 38 Maine, 246. A fortiori, the plaintiff’s agents appointed for the single purpose of making sale of the part of the vessel belonging to the estate, and paying the proceeds thereof to her, cannot constitute themselves receivers, withhold the money from her, and without authority from her, but against her protestation, disburse the same at their pleasure, by virtue of no decree in any process in equity, and undertake to adjust the claims of creditors and other owners, when the plaintiff had no opportunity of being heard in behalf of the estate, which she is bound faithfully to administer.

According to the agreement of the parties, the defendant is to be defaulted for the sum of $875, and interest thereon from April 1, 1857.

Hathaway, May, Goodenow, and Davis, J. J., concurred.