#### Richard Gardner *versus*Richard J. Cleveland.

The plaintiff having purchased a ship for a contemplated voyage, sold one half of it to the defendant; and it was agreed that they should furnish and be interested, each one moiety, in the cargo and voyage. The ship was to be fitted out uider the agency of B., and in order to raise the necessary funds, the plaintiff drew, and the defendant indorsed, a bill of exchange on the master at the foreign port. Tim plaintiff took the bill and gave the defendant a receipt, in which he agrees to negotiate the bill and to deposit the proceeds with B. on the joint account of himself and the defendant. The plaintiff negotiated the bill and paid over the proceeds to B. The bill was afterward protested, but the defendant was not duly notified of its dishonor. The ship, on her return, was sold, together with the cargo, under the direction of B., and the proceeds went into the hands of the plaintiff. It was held, that although the defendant was not liable on the bill itself, yet that between him and the plaintiff it was a mere instrument to raise funds for both, and that if the plaintiff should pay the bill, he would be entitled to recover of the defendant half of the difference between the net proceeds of the ship and cargo and the amount raised by the discount of the bill; but that until the plaintiff should pay the bill, he could recover nothing.

Assumpsit on the common money counts, and for goods sold and delivered. Plea, the general issue.

Upon the trial, before *Wilde*J., the following facts appeared in evidence. In November 1822, the plaintiff applied to Baker & Hodges to purchase for him a ship for a contemplated voyage to South America. They purchased the ship Canton; and also a few articles intended to be shipped as a part of the cargo. The plaintiff shortly after sold one half of the ship to the defendant, and it was agreed that they should furnish and be interested, each one moiety, in the cargo and voyage. It was further agreed, that the ship should be fitted out under the agency of Baker & Hodges ; and in order to raise the necessary funds to meet the advances to be made by Baker & Hodges, two bills of exchange, one for $ 20,000, the other for $ 5,000, were drawn by the plaintiff on the master of the Canton at Valparaiso, and indorsed by the defendant, for the purpose of being negotiated with the secretary of the navy of the United States, the proceeds to be placed in the hands of Baker & Hodges, for the joint account of the plaintiff and the defendant. On receiving the indorsement of these bills of exchange, the plaintiff gave the defendant therefor the following receipt, dated November 26th, 1822 : — “ Received of R. J. Cleveland two sets of exchange &c., which I am to negotiate *340with Smith Thompson, secretary of the navy of the United States ; which money I am to deposit with Baker & Hodges our joint account in an expedition to the Pacific ocean in the ship Canton.” The plaintiff was able to negotiate only the bill for $ 20,000 with the secretary of the navy ; which was done at a discount of six per cent; and the plaintiff accordingly received *$*18,800, the whole of which, except $300, he soon after paid over to Baker & Hodges, and at a subsequent period he paid over the $ 300. The balance of the out-fit beyond the $ 18,800 was advanced by Baker *&*Hodges and the master of the Canton, on the credit of the ship and cargo or of the owners. The voyage being attended with great loss, the bill came back protested. The defendant was not duly notified of the non-acceptance or the non-payment of the bill. The ship returned to New York, in October 1824, and was there sold, together with the whole cargo, under the direction of Baker & Hodges ; and after deducting what was due to them and the master for their advances, there remained in the hands of Baker & Hodges a balance of $ 11,282-50. On December 22d, 1823, the defendant’s moiety of this balance was, by his direction, paid over to the plaintiff by Baker & Hodges ; and on the same day the defendant placed in their hands the note of one Tappan, which was duly paid in February following, and the proceeds, amounting to $ 3635, received by the plaintiff, by order of the defendant. There was no proof of payment of the bill by the plaintiff.

The plaintiff claimed to recover one half of the amount remitted by him to Baker & Hodges, deducting half of the net proceeds of the sales of ship and cargo, and the sum received by Tappan.

The plaintiff also claimed the sum of $100, as half of his expenses in New York, in attending to the settlement of the voyage.

On the part of the defendant it was contended, that the plaintiff was not entitled to recover any thing, until he had paid on account of the defendant a larger sum toward the bill of exchange than he had received, as above mentioned.

The case was taken from the jury and reserved for the opin*341ion of the whole Court; who were authorized to assess damages in case the plaintiff ought to recover.

*Shaw*and *Bartlett,*for the plaintiff,

contended that the money raised by the negotiation of the bill was the plaintiff’s own funds ; and they cited *Cornwall*v. *Gould,*4 Pick. 444 ; *Braden*v. Gardner, ibid. 457 ; *Merrill*v. *Bartlett,*6 Pick. 46 ; *Thorndike*v. *De Wolf,*ibid. 120.

*Stearns, contra,*

cited *Maxwell*v. *Jameson,*2 Barn. & Ald. 51 ; Gow on Partn. 103 ; *Haskell*v. *Adams,*7 Pick. 59.

Wilde J.

drew up the opinion of the Court. We have not been able to see any just or legal ground on which the plaintiff can recover in this action, in respect to the principal sum in dispute. The parties were joint owners of the ship and cargo ; whether partners or not, in a strict sense, does not seem to us material. The funds placed in the hands of Baker & Hodges were raised on the joint crt Jit of the plaintiff and defendant, and were applied to a joint concern. The transaction was in the form of a bill of exchange drawn by the plaintiff and indorsed by the defendant. If there was any liability of one to the other on the bill, it was the plaintiff who was liable to the defendant, the bill not being accepted or paid by the drawer. But the nature of the transaction was such, that neither party could call upon the other on the bill. Between them it was a mere instrument to raise funds for the voyage in which they were jointly and equally interested. They stand therefore to each other as *quasi*partners, accountable for the excess which one should have advanced or paid beyond the other ; or like tenants in common of a chattel, entitled to a remedy for any money expended on the common property beyond the due proportion.

It does not appear, nor is it pretended, that the plamuff has actually paid or advanced more than his due proportion; but he is liable, as drawer of the bill, to the United States, and he claims, therefore, to recover one half of the funds raised by its discount, and by him remitted to Baker & Hodges, deducting a moiety of the net proceeds of the sales of the ship and cargo and the sum paid by Tappan on account of the defendant, it being admitted that the plaintiff is alone liable to the United States on the bill. This liability, however, gives no cause of *342action, for *non constat*that the United States will ever be paid.1 No money has been paid by the plaintiff to the use of the defendant, and there is no evidence to support the count for money had and received. Both parties are equally entitled to the funds raised by the discount of the bill, and the defendant’s interest therein remained unchanged, notwithstanding the on ission to notify him of the non-acceptance and non-payment of the bill. This discharged him only from his liability to the United States on the bill, but his liability to the plaintiff for a moiety still remains, and may be enforced whenever the plaintiff pays the money, but not before. If, on account of the plaintiff’s inability, or from any other cause, the claim of the United States should not be enforced against him, certainly he can have no right in law or equity to recover of the defendan;

As to the claim for services rendered and expenses 'ncurred in the adjustment and settlement of the accounts of the voyage, we think it well maintained by the evidence. In October 1824, the plaintiff was requested by the defendant to remain in New York for the purpose of attending to the common concern , and in January after, when the defendant was about to embark for Europe, he expressly appoints the plaintiff his agent for the purpose of “ making a final settlement of these accounts.” On this evidence it is clear that the plaintiff is entitled to a reasonable compensation for his services and expenses, and that he is not obliged to charge them to the ship and cargo. The only question seems to be, what is a reasonable compensation : as to which the evidence is not very satisfactory, but the question being referred to us to determine, we have made such an allowance as seems to us reasonable, according to the knowledge we have of the circumstances of the case. That allowance we have fixed at the sum of $ 50, and judgment will be entered for the plaintiff for that sum.

1

 See *Hodges*v. *Armstrong,*3 Dev. 253; *Morrison*v. Berkes, 7 Serg. & Rawle,238 ; *Miller*v. Howry, 3 Pennsylv. R. 380.