#### Edward Weston *et al.*plaintiffs, *vs.*James Wright (who was impleaded with Amos Howes *et al.)*defendant.

1. The same principle adopted in regard to the liability of a mortgagee, for . repairs under similar circumstances, as in the preceding case of *Delmo*v. . *Wright et ál.*for supplies.

2, In. an .action against him tp .recover for such repairs, evidence of the agreement upon which the bill of sale to his grantor was made, and that the ship’s husbands had notice that it was a mere collateral security, is not admissible. Xor is an affidavit, made by one of them in such former suit, denying that .. such mortgagee consented to the voyage, or was liable for. expenses; nor evidence as to what disposal they had made of the proceeds of the voyage.

(Before Bosworth, Ch. J. and White and Monell, JJ.)

Heard November 2,1863;

decided November 28, 1863.

Exceptions directed by the court at the trial to be heard in ' the. first-instance at .general term.

This- action -.was brought by Edward Weston,- Henry T. Dortic, George- S. -Weston, and Frederic De Billier, against Amos Howes, Mulford Howes, James A. Suydam, and James Wright, to recover for repairs to, the ship *Neptune’s Gar.*

None of the defendants but Wright interposed any defense.

On the 6th February, 1858, one PMUips conveyed to the defendant Wright, .by a bill .of sale, absolute upon its face, the *313one fourth part of the ship “Neptune’s Oar.” The bill of sale was properly acknowledged and recorded in the office of the collector of customs of the port of New York. The remaining three fourths of the ship were owned by the other defendants.

The action was for goods sold, materials furnished and work performed, to and for the ship, between the 29th of October and 27th of December, 1859.

Howes & Co. who were owners of one half the ship, were also agents for the owners. Upon the return of the ship from a preceding voyage, in October, 1859, thé agents sent her to the ship yard of the plaintiff’s assignors for necessary repairs. The repairs were commenced on the 29th of October and completed Dec. 27, 1859.

The defendant Wright denied in his answer that he was *owner*of any part of the ship, and denied all liability for the repairs furnished. He proved on the trial that the bill of sale from Phillips to him, although absolute on its face, was given as collateral security for advances made by him to Phillips, and was therefore a mortgage.

The cause was tried on the 20th of November, 1862, before Chief Justice Boswokth, and a jury.

The documentary evidence received and that which was offered and excluded was the same as in the case of Delano against "the same defendants, reported *ante,*298.

Among other evidence offered by the defendant was proof of the agreement upon which Phillips, the vendor of the bill of sale held by the defendant, became assignee of the interest thereby granted ; also, that at the time of the chartering of the ship on her outward voyage, and on November 19th, 1859, the homeward charter had not been agreed upon, and was not in contemplation by the ship’s husbands ; also that Howes *&*Co. had assigned away the moneys due on the charter party for the return voyage.

The defendant’s counsel requested the court to charge the jury that the defendant Wright was not liable for any of the *314repairs. The court refused so to charge, and the defendant excepted.

He further requested the court to charge that the defendant was not liable for any repairs done prior to November 19th, 1859. The court refused so to charge, and the defendant excepted.

There were also several exceptions taken by the defendant, during the trial, which are noticed in the opinion below.

The judge directed the jury to find for the plaintiff the amount claimed, with interest, to which direction the defendant excepted. *¿*

The judge suspended the judgment and directed the exceptions to be heard in the first instance, at the general term.

*J. T.*Williams, for the plaintiffs.

I. It is not to be assumed upon the case as it now stands, that the bill of sale from Phillips to Wright was intended to be a mortgage to secure an indebtedness from Phillips to Wright.

1. That pretense is found not to be a fact by the verdict of the jury. If the defendant wished to avail himself of such fact as an element of a defense, he should have asked to go to the jury on it and had it found in his favor. He should also have gone to the jury upon the question of possession, and had a finding of fact in his favor upon that point, if indeed he was able to obtain such,a finding. Not having done so, the verdict is conclusive against him upon both these facts, the presumption being that all the facts which the evidence would legally, permit the jury to find, they in fact did find in order to sustain their verdict.

2. Nor is this rule in anywise softened or changed by the fact that the verdict was directed by the court. On the contrary, it is greatly (strengthened by the fact—for the omission to ask to go to the jury upon any question of fact is an admission upon the trial that there is no fact advantageous to the legal rights of the party which the jury could have found in *315Ms favor—and therefore he suffers them all to he in legal effect found against him.

3. It is clear, from the undisputed facts of the case, that no such relation as that of mortgagee not in possession could have possibly existed between Phillips and Wright.

It is, however, enough that the plaintiff would have contended to the jury that no such relation as that of mortgagee out of possession existed, and upon this point he would have had a right to go to the jury, had it not been conceded in his favor by the verdict.

II. But if Wright had. originally been only a mortgagee out of possession, the note of the 19th of November, and his consent to the terms thereof, as proven by his affidavit and subsequent acts, were equivalent to taMng possession of the ship.

III. Had the defendant upon the trial desired to submit the question, as to his intentions, to the jury, he was bound to claim that privilege at the trial. Not having done so, the fact must be deemed to have been found against him—it must be deemed to have been conceded that then he did intend to assent to the proposal contained in the letter. (*Winchell*v. *Hicks,*18 *N. Y. Rep. 558. Dows*v. *Rush,*28 *Barb.*157.)

IV. The objection that Wright was not liable for the repairs done before the 19th of November is not well taken.

*Joseph H. Choate,*for the defendant,

Argued substantially 'the same points made by him in the preceding case of *Delano*against the same defendant, citing in addition to the cases there cited against holding a mortgagee, not in possession liable for supplies, &c. the case of *Mackenzie*v. *Pooley,*(11 *Exch.*638.)

By the Court, Monell, J.

The defendant, as mortgagee of the ship, out of possession, would not be liable for repairs or supplies, except upon an express contract. It was competent for him to show by parol proof, that the bill of sale from Phillips to him, wMch by its terms conveyed to Mm the *316absolute ownership to one fourth of the ship, was given, and received as collateral security for advances made. The evidence of this was positive and uncontradicted, and established that the instrument conveying that portion of the ship was a mortgage, and not an absolute conveyance.

The defendant, then, can only be made liable as a mortgagee *in possession;*and the question arises whether there was sufficient uncontradicted evidence of such a possession by the mortgagee, as authorized the direction to the jury,, that :the plaintiffs were entitled - to a verdict. There was no dispute^ that the repairs were necessary ; nor that they were supplied to the ship upon the order of the ship’s husbands. ■

The owners of ships, unlike any other personal property, are tenants in common, and the possession of one is the possession of all. *(Pars. Mar. Law, vol.*1, *p.*82.) The possession of a mortgagee may be constructive, and need not be manual. Any act which can be deemed in some degree equivalent to public notice that he is owner, added to his legal title.as owner, confers upon him the responsibilities and liabilities of an owner. *(Ibid.*112. *Miln*v. *Spinola,*4 *Hill,*177.) The case shows that Howes & Go.f the ship’s husbands, on the 19th of November, 1859, wrote to'the defendant as follows : i .

“We write to say that the ship *Neptune’s Oar*is chartered . for a voyage from the port of New York" to San Francisco, California, and will, in due time, be fitted out and sent on the same ; and that you will be. held liable for the expenses,,-bills and outfits attending such voyage. In case you desire to have the voyage performed .at our expense, and for our profit, and to receive a bond fór safe return, please to say so, and we will give it' with pleasure ; otherwise we shall consider that you acquiesce in the voyage, and intend to be responsible for your share in the expenses and losses.”

To this letter Howes & Co. received no response whatever. Here was an express notice to the defendant that the ship was being fitted out for a voyage, *and that he would be held liable for the expenses.*He could have relieved himself from responsibility by consenting that the voyage should be perforfned at *317the expense of Howes *&*Co., and receiving their hond for safe return; and he was apprised that if he did not consent to that, they should consider that he acquiesced in the voyage and *intended*to be responsible for his share in the expenses.

The neglect of the defendant to respond to this letter, could properly be regarded, and I think the law so regards it, as an assent by the defendant to become liable for the expenses attending the outfit of the ship. Howes & Co. recognized the right of the defendant to participate in the profits of the voyage, and intended he should.be liable for his share of the expenses* unless he agreed that the vdyage should be made for their profit alone.

The effect to be given to this letter and the defendant's silence, after its receipt by him, was to imply a promise by the defendant, to pay the expenses of the outfit and of the voyage ; the consideration for such promise being the anticipated profit in the adventure.

Had the evidence stopped here, it would, I think, have been sufficient to have charged the defendant. He was mortgagee, and had the right to take possession ; and his acquiescence in the voyage and consent to share the profits and losses, was the exercise of a control over the ship, which, within *Miln*v. *Spinola, (supra,)*amounted to a constructive, if not actual, possession of the vessel.

The plaintiffs, however, on the trial, introduced in evidence an amended complaint, sworn to by him, in an action brought by the defendant against the other owners of the ship, for an account of the profits of the ship on her voyage to California and back, and for payment to him of his share of such profits. In this complaint he asserts his rights as mortgagee ; avers the receipt by him of the letter of the 19th of Hovember, and alleges that he “ did not elect to have such voyage performed at the expense or for the profit of said Howes & Co., but that he acquiesced in such voyage, as for his account and risk as to the one fourth interest.” He claimed that he and the other owners were entitled to have the earnings of the ship on that voyage, applied to the discharge of the liabilities of himself *318and the other owners, *“ created through and under the management of the ship’s husbands,*in the course of, or in *connection*with such voyage.” That Howes *&*Co. had not applied the earnings of the ship to the payment of the expenses attending such voyage, *and the outfit*therefor. And that he would he exposed to loss and *liability*from the non-payment of the *outstanding*claims and demands against the vessel.

In an affidavit of the defendant sworn to some days after the verification of the complaint, to obtain an injunction,, the defendant states, that he assumed that as he was, under the notice from Howes *& Go.,*entitled to one fourth of the earnings, he was “ bound for a corresponding share of the outfits and expensesthat the outfits and supplies *“procured before starting,”*were in part for the return voyage, and if he had not supposed he was to participate in the earnings of the return voyage, “he would not have acquiesced in such proposal.” He further says, that assuming the notice of November 19 *and his acquiescence therein,*to have placed him in the legal position of mortgagee *in possession,*no subsequent event occurred, changing his relation to that of mortgagee out of possession.

These several statements made by .the defendant under oath, were not only competent, but strong evidence of the construction put by him upon his legal position to the ship, and should, I think, be deemed conclusive upon him.

It is claimed by the defendant that.he can not be held liable for any work or labor bestowed, or supplies furnished to the ship prior to the 19th of November. The order was an entire order to put upon the ship certain repairs, deemed necessary on her return from a previous voyage, and before her departure on her contemplated voyage to San Francisco. The bill of items shows that prior to that date the repairs amounted to #2,095.99.

The liability of the defendant for the repairs furnished prior to the 19th of November, depends upon the position he occupied on that day with respect to the ship. If there was nothing in his then attitude which reached back to the time the *319order was given, he was not liable. We are to assume that the repairs were necessary. They were put upon the ship prior to her embarking upon a voyage which was to be undertaken for the joint profit of all the owners. These repairs were necessarily a part of the expenses of the ship, and were made to enable the vessel to perform, her voyage; and it was but just, that those who were to participate in the gains which would come to them from the adventure, should contribute towards helping the ship perform her voyage. Without repairs the ship in her condition could not go to sea, and all concerned received the benefit of the work put upon her. As those repairs contributed to the defendant’s gain, it would be unjust towards those who made them, on the credit of those who were liable, to release him from payment.

But apart from this, even if there is no express or implied promise by the defendant to pay, his subsequent recognition of the claim is sufficient to hold him. The evidence shows that he consented to become liable for the *expenses*of the voyage, including the *outfit.*This is an express admission which relates back and confirms the order given by the ship’s husbands on the 29 th of October, and from which the law implies a promise to pay. I think the evidence is too strong to admit of a doubt that the defendant recognised the authority of Howes & Co., to order the repairs ; and his subsequent ratification was as effectual as if he had conferred the original power. And. this brings the case within the numerous cases cited by the defendant’s counsel on the argument.

The evidence offered, to show the agreement upon which Phillips took the bill of sale, "and that Howes & Co. were informed that he took the bill of sale as collateral security, was properly excluded. These were transactions prior to the conveyance to Wright and could have no effect upon the interest acquired by him, or on the sale from Phillips.

The affidavit of Suydam used in the injunction suit was not competent evidence in this action. He was a competent witness and could have been examined on behalf of his co-defend*320ant Wright, hut his written statements were not evidence, except to impeach himself.

The evidence offered, that at the time of the charter for the outward voyage, and on the 19th of November the homeward charter had not been agreed upon, was properly excluded. So also was the evidence offered, to show the disposition made by Howes *&*Co. of the charter money. This evidence did not tend in any" degree to relieve the defendant from the effect to be given to his acquiescence in the voyage, and his consent to become liable for the expenses and outfit.

Another reason for excluding all this evidence offered by the defendant was, that it could not affect the plaintiff’s right to recover, and was therefore immaterial.

The only negative evidence was that of the witness Suydam, who. testified that to his knowledge, prior to the 19th of November, the defendant had nothing to do with the ship. If the view which I have taken is correct, this evidence is wholly unimportant. The acts of the defendant on and subsequent to the 19th of November were sufficient to charge him.

There was no question of fact for the jury, and hence there was no error in the refusal to charge as requested, nor in the direction to the jury to find for the plaintiffs.

The exceptions- should be overruled and judgment ordered on the verdict.

Judgment ordered accordingly.