#### Samuel Goodridge and Another *versus*Daniel Lord.

The charterer of a vessel is bound to victual and man her, without any express stipulation in the charter-party to that effect, unless a different intention is apparent from the instrument

Where the master of a vessel had received funds from the charterers for the payment of the seamen’s wages, and he, notwithstanding, suffered the vessel to be libelled for the wages, whereby the owners were obliged to pay them, in order to relieve their vessel, tire master was holden liable to them for the amount so paid by them, in an action for money laid out and expended, although the charterers were indebted to him to the amount so received of them by the master.

Assumpsit for 1500 dollars, laid out and expended for the plaintiffs, and for a like sum had and received by the defendant, to the use- of the plaintiffs. [ * 484 ] * This action was tried at the last April term in this county, and a verdict found for the defendant, by direction of the late chief justice, subject to the opinion of the Court upon the following case agreed by the parties: —

The plaintiffs, on the 4th of December, 1810, being owners of the schooner *President,*of the burden of 141 tons, by a deed of charter-party, let her, to freight, from *Portsmouth, New Hampshire,*to the *West Indies*and back to *Boston*or *Salem,*to one *David Marston,*who thereby covenanted to pay 300 dollars per month for the freight during the said service, and to pay the charge of victual-ling and manning the said schooner, and to pay all port charges and pilotage during the voyage, and to deliver her to the owners upon her return. And it was further agreed that the schooner should be, for and during the voyage, at the sole risk of the said *Marston*He acted, as well for himself, as agent or clerk for one *Burbank,*for that voyage. The defendant was master of the schooner, appointed by the said *Marston*and *Burbank,*for that voyage. The schooner performed the voyage, and on her return was delivered to the plaintiffs.

*475It appeared, from the depositions of *David G. Hubbard,*a merchant of *New York,*that before the 8th of July, 1811, the said *Hubbard*then having in his hands a quantity of molasses claimed by the said *Marston*and *Burbank,*and being also informed by the said *Lord, Marston,*and *Burbank,*that there was a considerable sum due from the said *Marston*and *Burbank*to the seamen for wages, for which Captain *Lord*was liable as master, and which he would be obliged to pay if the seamen should call upon him ; and the said *Hubbard,*being satisfied that Captain *Lord*would be a considerable sufferer by *Burbank,*exclusive of his liability for the wages of the seamen, was desirous to do all in his power towards appropriating the avails in his hands sufficient to cover the said wages, advised Captain *Lord to*procure an order from the said *Marston*and *Burbank*on the said *Hubbard,*payable, when in cash, on their account on sales of molasses. The defendant accordingly procured such an order for 1000 * dollars, which [ * 485 ] sum the said *Hubbard*understood, from the conversation of the parties at the time, was intended by all concerned to pay the wages of the seamen of the schooner of which *Lord*was master. The said order was drawn without the knowledge of the plaintiffs at the time. And, on the 5th of September, the said *Hubbard*made a settlement with the said *Marston*and *Burbank,*and informed the defendant that he, the said *H,*had retained in his hands 1000 dollars for said order, which the defendant had left in his hands. This sum the defendant afterwards received by a draft on *Boston,*payable in December, 1811.

It appeared that the said *Marston*and *Burbank,*in July, 1811, were indebted to *Lord*on a promissory note, dated December 20, 1810, for 1050 dollars, on interest; and he had become bound for them to pay the plaintiffs 276 dollars 60 cents, for some freight money, which he had since paid. On the 17th of September, 1811, the said *Hubbard*informed the defendant that he had endeavored to prevail on *Marston*and *Burbank*to let him pay the defendant a further sum out of 1500 dollars, then remaining in his hand's after a settlement with them, beyond the 1000 dollars before paid, to which they did not consent, and the 1500 dollars were paid over to them.

It was also in evidence that, on the 9th of September, 1811, the seamen aforesaid prosecuted a libel against said schooner, for their wages on said voyage; the schooner was seized, and the plaintiffs, on the 25th of the same September, and before the draft on *Boston,*aforesaid, became due, paid 764 dollars 76 cents to the libellants, for their wages for the voyage aforesaid, which sum they were obliged to pay, to obtain the release of their vessel from said seizure

*476The defendant paid the plaintiffs, for the freight above mentioned, 276 dollars 60 cents; and on the 5th of December, 1811, he applied and endorsed on his note aforesaid 737 dollars in part payment thereof. He has’never paid the plaintiffs the sum so paid [ * 486 ] by them for the wages aforesaid, although he * knew of the libel, and that the plaintiffs had paid said wages; but appropriated the money as aforesaid, for payment of debts due from *Marston*and *Burbank*to himself.

If the Court should be of opinion that the verdict was right, judgment was to be entered thereon for the defendant to recover his costs; otherwise the verdict was to be set aside, and judgment rendered for the plaintiffs for the sum of 764 dollars 76 cents, with interest from the service of the writ, and costs of suit.

*Andrews,*for the defendant,

being called on by the Court, contended that there was no privity between these parties, which was necessary to give the plaintiffs" a right of action. At the time the money was paid to the defendant, they knew nothing of it; and this latter had then demands on the charterers to a greater amount. (1) These demands still exist; so that, in equity, the defendant has as strong a claim to retain the money as the plaintiffs to recover it from him.

*Putnam*for the plaintiffs.

(1)

 1 *Esp. Dig.*105. — 3 *Sir.*592, *Grow*vs. Rogers.— 1 *Vent*6, *Bourne*vs. *Mason.*—14 *East,*582, *Williams*vs. *Everet &*Al.— 1 *Chittyon Pleading,*341.

*By the Court.*

From the facts stated in this case, it appears that the defendant, as master of the vessel, was liable to the seamen for their wages; and that' the plaintiffs were not liable, *Marston*and *Burbank*being substituted as owners for that voyage by the charter-party, and having stipulated to pay all the expenses of victualling and manning the vessel. The plaintiffs’ vessel was, however, liable to the seamen by the marine law, and was, in fact, libelled and held until the plaintiffs procured her release by paying the sum due.

Certainly, under these circumstances, an action would lie for the plaintiffs against *Marston*and *Burbank,*to recover the amount paid ; and this without any express stipulation in the charter-party, or proof that the charterers were to victual and man the ship, *(a)***That would be the effect of the contract of charter-party, unless it appeared by the instrument itself that a different arrangement was intended.

As the contract between the master and seamen [*487] is express * in the shipping-paper, and he is made directly responsible to them, and may retain freight to indemnify *477himself, perhaps an action would lie by the owners against the master for money they had been compelled to pay the seamen, in order to relieve their property from the custody of the law, without other circumstances being proved.

But, in this case, the master actually received money sufficient to pay the wages; and received it, in the understanding of all the parties, for this very purpose; and the appropriation of it to a different object was altogether an afterthought, probably produced by the insolvency of *Marston*and *Burbank.*

We can hardly conceive of a clearer case for the equitable action brought against the master. He had money in his hands destined, by those who paid it, for the compensation of the seamen ; and it was received by him for no other purpose ; yet he sees the libel of the vessel, and does not remove it, and obliges the plaintiffs to advance the money to pay a debt of his own.

It is said there was no privity between these parties, and no request. But the restraint upon their property stands in lieu of a request; and the law implies a promise, as for money laid out and expended for the use of the defendant; although we doubt if the plaintiffs could recover, upon the facts stated in the case, upon the count for money had and received.

The case of *Exall*vs. *Patridge,*(2) which was cited for the plaintiffs, is a stronger case than the present, and leaves no doubt how this question would be decided in the *English*courts. Indeed, we are all very clear that the plaintiffs ought to recover. The verdict is, therefore, to be set aside, and judgment to be entered for the plaintiffs, for the sum agreed in the case, with interest and costs.

ADDITIONAL NOTE.

[See *Swasey*vs. *Little, 7 Pick.*296. — *Winsor*vs. *Cutts, 7 Greenl.*261. — *Pitkin*vs. *Brainerd,*5 *Conn.*451. — F H.]

(a)

*[Kimball*vs. *Tucker,*ante, 192.— *Putnam*vs. *Wood,*3 *Mass.*Rep 481. — *Meyer vs. Barker,*6 *Bin.*228. — *Ripley*vs. *Scaife,*5 *B. & C.*167. — Ed.]

(2)

 8 *D. & E.*308.