#### Catharine Jenkins, adm’x, and Thomas Gr. Wait, adm’r, &c. plaintiffs and respondents, *vs.*David E. Wheeler, defendant and appellant.

1. Under an absolute covenant under seal, by the owner of a vessel, to pay the master thereof, as a compensation for taking charge of such vessel as such master, on a voyage from New York to Australia and back, a certain sum “ per month for each and every month,” without any condition that such payment should depend upon the completion of the voyage, or the vessel’s ability to perform it; HeM that the failure of the owner to have the vessel properly fitted for the voyage, by which such voyage was defeated, or any subsequent occurrence beyond the master’s control, which broke it up, would excuse him from performing it, and not impair his right to compensation during his Actual service as master of such vessel.

2. If, in such a case, there is no qualification in the covenant of the owner’s liability, so as to make it depend upon the earning of freight by the vessel, the failure to earn it will not deprive the master of compensation,

3. The phrase that “ freight is the mother of wages ” is not universally true, even in regard to seamen’s wages. Still less does it affect the compensation of the *master*of a vessel, which is not properly wages. His rights rest solely upon the terms of his contract, with which the earning of freight has nothing to do.

*4.*Neither by the common or maritime law can any act of misconduct of the master, which does not go to the whole consideration for the promise to pay him—such as breaking up the voyage, or rendering it entirely unprofitable— deprive him entirely of his pay.

5. Hence, where, in an action by the master, to recover his compensation, the court left the determination of the question whether *“*the voyage was broken up by reason of the negligence, unskillfulness, fault or fraud of the captain,” to the jury, and instructed them if they found in the affirmative to find a verdict for the defendant, hut to deduct the amount of certain damages from any sum due the plaintiff, as well as damages caused by deviations from the original route, although they might not have contributed to the vessel’s loss, and even for any neglect to send home books and documents necessary to substantiate *576claims for insurance; *Held*that this was as favorable a charge for the defendant as he was entitled to.

6. Where there was abundant evidence to show the unseaworthiness of a vessel at the time of her departure from New York, in the deficiency of spars, rigging, small boats, ballast and water, and evidence was offered, to show damage done to the vessel by a storm she encountered; of her being unfitted thereby, to go to sea from an intermediate port; of the unprofitableness of repairs, and the impossibility of procuring funds there for that purpose; of her survey, condemnation and consequent abandonment to the underwriters; and a sub- ' sequent sale of such vessel under the decree of a court of admiralty, in a suit brought by the crew for their wages; *Held*that all the facts which such evidence tended to prove must be assumed to have been found by the jury. If so, they perfectly justified the desertion of the vessel by the master.

7. Where the efforts of a master of a vessel to raise money for repairs at an intermediate port were proved; *Held*that for that reason, as well as on account of the difficulty of procuring repairs at such port, and their exceeding, if made, one half of the value of the ship, the captain was justified in abandoning her to the underwriters, and acknowledging, in an action for the wages of the crew, that they were due.

8. A refusal of the judge to charge absolutely, as matter of law, that certain deviations were fatal to the master’s right of recovery, was correct, and that the instruction given, which left the propriety of such deviations as a matter of fact for their consideration, was all the defendant was entitled to.

9. All connection by the master, as such, with the vessel, ceases with its sale at an intermediate port. Any subsequent agency as to its proceeds, or the cargo or business connected with the voyage, ceases with his departure from such port, on his return home.

10. After such sale he does not act as master, but as mere agent, with probably diminished services and responsibility. For such services he is only entitled to a reasonable compensation. He cannot recover pay for the time spent on a voyage home.

(Before Robertson, Ch. J., and Garvin, J.)

Heard November 14, 1866;

decided April 8, 1867.

This action was 'brought by the original plaintiff therein, (O. N. Jenkins,) now deceased, against the defendant (Wheeler) to recover the aggregate amount of a certain monthly-compensation ($150) agreed by the defendant by a covenant under his seal to be paid by him to the plaintiff for taking charge of a vessel, (the bark Peytona,) on a voyage from New York to Australia and back as her master, according to the •instructions then given to him by a third person, (Mr. Pelletier.) Such instructions contained minute directions as to a great many matters, such as the treatment of passengers *;**577stopping at the cape of Good Hope ; sales of liquors ; collection of bills ; preparations for the return voyage ; consignees ; care of the vessel; mistakes in bills of lading ; return cargo ; the crew ; the proceeds of the outward cargo and surplus provisions ; but nothing affecting the merits of this case. Indeed, the object of such instructions was stated therein “ to be *not to bind down”*the plaintiff *“ to positive orders.”*A postscript to them requested the plaintiff to keep Mr. Pelletier advised of any action or intended action by him.

The vessel in question was built sharply on the keel, and was of about two hundred and seventy tons burden. Her iron ballast having been taken out of her, before sailing, she went to sea without enough, having one hundred and fifty passengers on board, and also a condenser for making fresh from salt water. After being out about two weeks, she deviated from her intended voyage and put into the port of Bahia (on the Northeasterly point of South America) to procure supplies of water, provisions and ballast, of which she was short. At that port some passengers died and others were taken on board, increasing the total number. Several passengers (Hu*ff, Bridgman, Bailey*and *Thomas,')*lent the plaintiff a certain sum ($1964) at that port, to enable him to procure supplies for and refit his vessel, and it was employed by him for the purpose. The bond which he executed to secure the re-payment of such loan was made payable with maritime interest in six days after such vessel arrived at Australia.

After leaving Bahia such vessel was retarded in her course by head winds. Her water and provisions again failed, and she deviated a second time from her route to stop at Gape Town, at the cape of Good Hope, on the coast of Africa, in order to procure more supplies. After some stay there, for that purpose, and taking more passengers on board, she again sailed for her destination ; but meeting with a violent storm which carried away her rudder, some of her spars and part of one of her masts, and caused her to leak badly, she deviated' a third time from her route and put into Port Louis in the *578island of Mauritius, as the nearest port of a civilized country which she could reach.

At such port the former plaintiff being unable to obtain money to refit such vessel and enable her to pursue her voyage, abandoned her to the underwriters and offered her for sale by the commercial agent of the United States, at that place, as their agent. Upon which, the obligees in the bottomry bond before mentioned, took proceedings therein, in an admiralty court, and caused such vessel to be seized by its process. But, two months after the commencement of suoh suit, and before any decree therein, the crew of such vessel libelled it in the same court in a suit to recover their wages. Under a decree of sale by such court in the last suit the vessel was sold and the proceeds paid into court. The former plaintiff was subsequently defaulted finally in the suit of the holders of the bottomry bond, but not until the very day such proceeds were so paid into court. After remaining six months at Port Louis endeavoring to settle the affairs of the vessel and get away, the plaintiff returned to New York, where he arrived at the end of an additional five months.

The answer set up as defenses four matters, *First.*Mere agency for others by the defendant, in executing the covenant in question and the plaintiff's knowledge of that fact. *Second.*Various delinquencies of the plaintiff, as master, whereby the owners lost the ship and cargo. *Third.*The failure of the plaintiff to take such vessel to Australia and bring her back. *Fourth.*The failure of such vessel to earn any freight. Such answer also controverted certain allegations in the complaint as to a storm encountered by the vessel in question, its consequences, the plaintiff's diligence and skill in navigating her, and the proximity to Por Louis to the place of such storms, and also certain others as to the condition of the vessel on arriving at such port: the propriety and fact of abandoning her *\*the seizure of her under the proceeding to enforce payment of .the bottomry bond, and the plaintiff’s defense of such suit. It averred that such vessel was not liable to seizure for non-payment of such bond, because it was not payable until six days after her *579arrival in Australia, and denied either that the plaintiff ever exercised or continued to exercise proper care in saving and protecting such vessel and cargo, or only remained so long at Mauritius as was necessary. And controverted his readiness to complete the voyage of the ship had she not become unseaworthy.

The delinquencies of the plaintiff set up in the answer as causes for forfeiting his right to compensation, were as follows:

1. An omission properly to use a water condenser on board.

2. Putting into the port of Bahia.

3. Taking in more passengers at that port so as to exceed the legal number, and incurring the risk of her forfeiture thereby.

4. Putting into Cape Town and taking in, while there, more passengers.

5. Omitting to defend the action on the bottomry bond.

6. General neglect of duty, whereby such vessel was lost to the owners.

7. Abandonment of such vessel and voyage before her arrival at Australia.

None of the pleadings referred to any sale of the vessel, or any suit by the crew for wages, or any neglect of the plaintiff in defending any suit, except that the complaint alleged, and the answer denied, that the plaintiff defended the suit on the bottomry bond, to the best of his means and ability.

The second officer of the vessel, afterwards promoted to be her first, (Grant,) testified that “she did not have water enough on board,” on sailing from New York. “She had too many passengers *;*she was not fitted in regard to having spare spars or boats ; she had only two small boats, and one was in a bad condition.” “ She was light ” in respect to ballast, “which affected her very much in sailing.” They “could not carry much sail on her in a strong breeze; if they did, it threw her on her beam ends.” A passenger (Harris) also testified, that “ she laid over very much on one side.” A shipmaster (Webster) testified that “she was pretty sharp, and had not a great deal of room down below *;** she was leveled off with pig *iron;*the bottom part was filled with it, but it was taken *580out before she went to sea.” Grant also testified that they had “ pretty bad weather * * along first out; this blow lasted from twenty-four to thirty hours.” She commenced to leak *some*before “they arrived at Bahia.” He further testified that they directed their course to that place “ as soon as they got short of water,” when the passengers were put on short allowance, upon which they might have remained at sea thirty or thirty-five days longer. The vegetables on board only lasted a month after their departure. When they put the passengers on short allowance, three water casks below were empty, and the water of most of those on deck had been used out. Half of the contents of two water tanks below were gone, and only three casks remained filled with water. Harris testified further that they had a very long passage from Bahia, having mostly head winds, and went into Cape Town for water and fresh provisions, on the urgency of the passengers, who were apprehensive on account of the length of the voyage. Grant testified that they had calms on that part of their voyage, and light variable winds, and put into Cape Town for want of water. None of this testimony was contradicted.

According to the statement of Harris, the vessel encountered heavy winds after leaving Cape Town, and lost her rudder. According to that of Grant she had also carried away her spars, jibboom and foretop-gallant-mast, had her boats stove, and lost overboard some spars, leaked very badly, and lay four or five days in the trough of the sea, before the weather suited to get steerage way on her, and she was in a very bad condition for continuing her voyage to Australia. It was as much as they could do to reach Mauritius. They were put on a short allowance of water. This testimony was also uncontradicted.

A master of a vessel (Webster) testified ■ that Mauritius would be the most proper port to put into if a disaster occurred to a vessel in summer, and she was disabled a week ' after she was out a week from Cape Town. Grant testified “ that Mauritius was the nearest port.” They “ might have *gone*into Madagascar, but could have done nothing or got *581nothing if” they “ had gone there. Mauritius was the nearest civilized port.” No testimony was offered to contradict such statements.

On her arrival at Port Louis, the vessel was surveyed, as was testified to by one of the surveyors, (Captain Winsor,) by himself, the captain of the port (Russell) and the American consul, (Farnham.) She was then in a crippled condition, and required extensive repairs. The rudder was broken ; she needed caulking all over, sails and rigging. The leak was a general one. The surveyors recommended the former plaintiff to land his cargo. Grant testified that it would have cost from ten to twelve thousand dollars to have repaired her, paid. the passengers’ board, and bought the necessary provisions at Port Louis, and that the captain advertised for from ten to twelve thousand dollars on a bottomry bond to repair her. Cajjtain Winsor testified that he also saw the advertisement, but the master *“*could not have raised money to pay for his repairs and materials.” Nobody *“*would have lent the money and taken the vessel.” It would not *“*have been expedient for him to have done so, for * the repairs, &c. would have cost more than she was worth, and with all those passengers, she could not have gone to sea, without being put in a very good condition.” Grant further stated, there was no possibility of the captain’s raising money in the position in which he was. There was no contradictory testimony upon any of these points.

Harris (the passenger) testified that the captain published a notice in the newspapers in Port Louis, announcing the abandonment of the vessel to the underwriters, for want of means to prosecute the voyage, in consequence of which she was to be sold, which notice was signed by the American commercial agent at such port, (Farnham.) Grant corroborates such statement, and there was no testimony to contradict it. A statement in a letter from the United States consul (admitted in evidence by consent) alleged that on the ninth of September, 1853, a notice was published, stating that an act of abandonment of the vessel had been made by the master, *582and in the same month part of the cargo of the vessel^ being damaged, was sold. All of which was uncontradicted. The vessel was seized on admiralty process in September, 1853, and a suit was instituted in November, Í853, by several of the crew of such vessel, and, as appears by the record of the court, of admiralty in which it was brought, read in evidence by consent,) the captain appeared to such action “ pursuant to a warrant of arrest served upon him by the marshal of the court,” and signed an admission that it was “ utterly impossible for him to pay the several sums specified, which he confessed to be lawfully due to such seamen.” Upon which a decree of sale was made in such action, and such vessel sold for about $9500 in November or December, 1853, and the. proceeds paid into court.

The captain remained in Port Louis after selling part of the cargo and storing the rest, trying to arrange his business and get home, for which he left in May, 1854, and where he arrived in October, 1854. He demanded of the commercial agent who was acting as consul, to whom he had previously surrendered them, his log-book and other papers, which were refused. Harris (the passenger) testified that the first time the condenser was tried, before the deviation to Bahia, it wouldn’t work, and the attempt was made two or three days in succession. They couldn’t get much. About half a ban-el altogether. “ The inside” of it “had become incrusted with salt, and the whole apparatus * * so warped, that it would not operate.” Another witness, (Williams,) a shipmaster introduced by the defendant, testified (on his cross-examination) that condensers •“ were made too thin, and so small that,” in a gale of wind, they would “ teem over” and have “ no water in one end; ” also, that “ the salt collected in them, and they required cleaning once a week.” * “ In hard weather, when the ship rolled, they would not condense,” and when “ she lay over, they would not have water in their bottoms, and would crack by the heat.” And further, that he would *not trust*one, that held seventy or eighty gallons.

•The defendant’s counsel requested the court to instruct the *583jury, that if the defendant is responsible for the captain’s wages, under the agreement in question, he is entitled as against the plaintiff or his intestate to all the rights of owner of the vessel called the Peytona.

He also requested him to instruct the jury that the plaintiffs could not recover in either of the following cases :

I. If the defendant, when he signed the agreement mentioned in the pleadings, was an agent only, and not a principal or beneficially or personally interested, and signed said agreement as such agent, and not otherwise, and the same was at the-same time well known to Jenkins.

II. If full performance of the agreement in question, on the part of Captain Jenkins, was not prevented by inevitable accident, or the act of God, or of the defendant, and that such agreement was not fully performed.

III. If Jenkins deviated from the direct and usual route, from New York to Australia, without necessity.

IV. If the master, with the ship and cargo, remained in the ports either of Bahia or Cape Town a longer time than was absolutely necessary for him to obtain the supplies necessary.

V. If, during either of the deviations, any damage or'injury occurred to either ship or cargo.

YI. If the storm which caused the damage to the ship and cargo was encountered in consequence of either of the before mentioned deviations.

VII. . The want of water was no excuse for any deviation, if the condenser was capable of producing water enough for the persons on board and was a proper and usual machine for vessels of the class and in the trade of the Peytona.

VIII. If the port of Port Louis in Mauritius was not the nearest and best port or harbor to make, after the vessel met with the disaster of the Cape of Good Hope.

IX. If the master was guilty of any violation or disregard of his instructions or duty, tending to the injury of the owners or subjecting their property to unnecessary hazard.

X. If Capt. Jenkins failed to account for the proceeds of the sale of the vessel at Mauritius.

*584XI. If the master did not avail himself of all means in his power to defend the vessel from seizure and condemnation, either on the bottomry bond, or for seaman’s wages, but by his default, neglect ór confession permitted judgment of condemnation to pass against the vessel.

And the counsel for the defendants further requested the. court to instruct the jury that the master was guilty of violation of duty in the following contingencies :

I. If he offered the ship or cargo for sale in the Island of Mauritius, without necessity.

II. If he omitted to take all the measures in his power for the protection of the avails of the ship and cargo for the owners.

III. 'If he omitted to transmit in due season to the owners the proper evidence of an abandonment to the underwriters of the ship or cargo.

IV. If he omitted to render to the defendant or the owners, an account of the proceeds of the bottomry bond, and of the moneys received from passengers or from ship and cargo.

V. If he omitted to forward to the owners a due account of the proceedings on the seizure in the island of Mauritius.

And thereupon the court instructed the jury that the plaintiffs were entitled to recover of the defendant one hundred and fifty dollars a month from February 8, 1853, to November 25, 1853, and for such further period of time as would be reasonably required for Captain Jenkins to return to New York from Mauritius, by .the first usual mode of conveyance that presented itself after November 25, 1853, with interest on the aggregate amount from February 14, 1855, unless the voyage had been broken up through the unskillfulness, negligence, fault or fraud of Captain Jenkins, in which event the defendant would be entitled to a verdict. Or unless some damage' had accrued to the defendant from the fault, negligence, unskillness, or fraud of the captain in the line of his duty.' But if they found, either that the captain could not procure sufficient means to repair the vessel, or if he could, that it was not for the best interests of the owner to have the repairs made at *585Mauritius, then the captain was justified in abandoning the vessel and advertising her for sale. In either of those cases the- bottomry bond and the • seamen’s wages became due, and neither the abandonment nor advertisement for sale, nor the proceedings in court or the sale of the vessel, afforded any excuse for non-payment of the captain’s wages.”

The judge further instructed them in substance; that if, taking “ into consideration the age, character, condition and value of the vessel and the cost of repairs,” and the other facts proved “in the case, means could have been raised for making those repairs at Port Louis, and it was for the best interest of all parties interested in such ship and cargo, that such repairs should have been made at Mauritius, that disposed of the case in favor of the defendantbut even if they came to the contrary conclusion, they would still find a verdict for the defendant, if both the captain deviated, without just cause, from the proper course for the prosecution of his voyage, or remained longer than was necessary, and those things contributed to the final disaster, although not otherwise. That they were to • decide, whether any deficiency of water or ballast existed, and if so, whether, in the judgment of prudent men, such deficiency was sufficient to warrant such deviations, and in determining that, they would consider the fact of the presence of the condenser on board, its condition and capacity. If “ in good working order, and capable of supplying fresh water for the passengers, and they were in general use in 1853, the captain was bound to know how to use it, and there could have been no necessity for putting into port to obtain water.” But the condition and capacity of the condenser in question, and the generality of use of such condensers was for them to consider.

He further instructed such jury in substance, that although they might find for the plaintiffs, upon the impracticability of repairing at Mauritius and the necessity of deviating on the voyage, they should still determine, whether any and what damage had occurred to the owners by the fault, negligence or *586unskillfulness of the captain, and deduct the amount from what he would otherwise he entitled to recover. That if the deviations complained of were unavoidable, the defendant was not entitled to damages therefor. But even if not so, and although they might not have contributed to the encounter' with the gale, yet if any other damages accrued therefrom, except *the loss,*they were to be deducted. That no damages could he brought against the captain, for any thing that occurred after the discovery of his inability to procure money to make repairs at Mauritius, and the unprofitableness to the owners of making them.

He further instructed the jury, that if the captain neglected, without any excuse, to send on the proper means of information to entitle the owners to recover their insurance, then, whatever damage they might find the owners suffered by reason of that neglect, they should deduct from the amount stated in the beginning of such charge, as that which the plaintiffs were entitled to recover, and that they should inquire whether there was any reason why he could not send it on. To which last instruction the defendant excepted, and also to such portion of such charge as related to the time for which the wages were recoverable. On the ground that if recoverable at all, they could not be recovered for a longer period than from the inception of the contract sued on to the breaking up of the voyage.

The judge, before whom the issues were tried, then'declined to comply with the several requests on the part of the defendant’s counsel to instruct' the jury, otherwise than he had already done. To which refusal in regard to each request, the defendant’s counsel excepted, and also to all parts of such charge which varied from the instructions so requested. '

The jury found a verdict for the plaintiffs for $5285, for which judgment was entered. A motion was made for a new trial at special term, on a case, and denied; from which denial, as well as such judgment, an appeal was taken to the general term and such appeals were heard together.

*587*J. W. Edmonds,*for the appellant, defendant.

I. It was competent to prove that the defendant contracted as agent, and not as principal.

1. The mere appearance of absolute ownership does not affect the question of the defendant’s liability.

*(a.)*The registry of the vessel is not evidence of ownership. *(Leonard*v. *Huntington,*15 *John.*302. *Myers*v. *Willis,*18 *Com. Bench,*886. *S. C. Ex. Ch.*36 *Eng. L. and Eg.*380.)

(5.) An absolute bill of sale of a vessel may be proved by parol to be only a mortgage. *(Champlin*v. *Butler,*18 *John.*169. *McIntyre*v. *Scott,*8 *id.*159. *Ring*v. *Franklin,*2 *Hall,*1. *Birkbeck*v. *Tucker, Id.*121.)

(c.) The holding the legal title does not itself make a party liable as owner. *(Hesketh*v. *Stevens,*7 *Barb.*488.)

2. The liability for supplies for a vessel is always on the party on whose credit they were furnished. *(Jennings*v. *Griffith,*1 *Ry. & M.*42. *McIver*v. *Humble,*16 *East,*169. *Young*v. *Brander,*8 *id.*10. *Abbott on Shipping,*32, 33, 40, 51. *Leonard*v. *Huntington,*15 *John.*298. *Wendover*v. *Hogeboom,*7 *id.*308. *Thorn*v. *Hicks,*7 *Cowen,*697 *Trewhella*v. *Rowe,*11 *East,*435. 1 *Pars, on Mercan. Law,*113, 115. *Macy*v. Wheeler,. 30 *N. Y. Rep.*231. *Myers*v. *Willis,*36 *Eng. Law and Eg.*380.)

*(a.)*Primarily and presumptively the liability is on the owner, or the party making the contract. Because, from those facts it is to be presumed, that the supplies were for the benefit and on the credit of such owner or contractor. But it may always be proved that some one else is the party benefited, and when it is so proved, the liability is fastened on such party. Sometimes this liability is on the owner *or*master, hut if the creditor has acted on a special promise from either, the other is discharged. *(Leonard*v. *Huntington,*15 *John.*302. *Champlin*v. *Butler,*18 *id.*169. 1 *Pars. on Mercantile Law,*113, 115. *Annett*v. *Cairstairs,*3 *Camp.*354. *Abbott on Shipping,*40, 51.)

*(b.)*The error of the judge consisted in his ruling that because Wheeler was a nominal contractor, he was therefore *588liable, and could not be discharged by any thing showing for whose benefit the service had been performed. The - true rule of law is thus absolutely reversed.

3. This ruling was doubtless founded on the idea that an agent, though his agency be disclosed, can yet make himself personally responsible by contracting in his individual name. This may be so where there is an absence of evidence as to what was actually intended, and where the .court is left to presume an intent to be personally liable, from an individual contracting. But it is never so, where there is clear evidence that there was no such intention. Here, as elsewhere, the true question and the controlling one is, For whose benefit and on whose credit was the contract made ? *(Colvin*v. *Holbrook,*2 *N. Y. Rep.*129. *Foster*v. *Hoyt, 2 John. Cas.*327. *Blossom*v. *Griffin,*13 *N. Y. Sep.*569.)

*4..*One of the grounds on which the judge held the defendant liable, viz. ownership or legal title in him, entirely fails in this case, for the defendant was not the owner ; he was merely mortgagee.

*(a.)*The evidence offered was that Wheeler merely held the legal title for Overman *&*G-runer to secure them for their advances to Pelletier.

*(b.)*It was competent thus to show that a bill of sale of a vessel, absolute on its face, is in fact a mortgage. *(Abbott on Shipping,*52, *7th Am. ed. McIntyre*v. *Scott,*8 *John.*159. *Champlin*v. *Butler,*18 *id.*169. 3 *Cowen & Hill’s Notes,*1432, 1433. *Ring*v. *Franklin, 2 Hall,*1. 4 *Kent’s Com.*142. *Birkbeck*v. *Tucker, 2 Hall,*121. 3 *Greenl. Ev.*63, 64.)

(c.) Till the mortgagee takes possession he is not liable as owner. *(Chinnery*v. *Blackburn,*1 *H. Bl.*117, *n. Smith on Mer. Law, Am. ed.*179, *note*185, *n. Sing*v. *Franklin, 2 Hall,*1. 3 *Kent’s Com.*135. *Duff*v. *Bayard, 4 Watts*& *Serg.*240. *Weber*v. *Sampson,*6 *Duer,*358. *Manning*y. *Dunn,*14 *Barb.*583. *Stedman*v. *Fiedler,*25 *id.*605.)

5. The whole matter, then, resolves itself into this question : Which shall govern—the rule that the liability rests on him for whose benefit and on whose credit the contract was *589made ; or the rule that such liability may be presumed from the fact of nominal ownership and individual contracting by one confessedly a mere agent ? The cases establish very clearly the principle that the actual fact of credit and benefit shall predominate over the presumption. *(Paley on Agency,*318, 369, 378. *Owing*v. *Gooch; 2 Esp.*567. *Kidson*v. *Dilworth,*5 *Price,*564.) “ Shall he be permitted to proceed against a mere agent merely because that agent has put his name on the instrument to satisfy a formality, &c. ? It is impossible.” *(Trueman*v. *Loder,*11 *Ad. & Ellis,*589; *cited approvingly in 24 N. Y. Rep.*61. *Champlin*v. *Butler,*18 *John.*169. 1 *Pars, on Mer. Law,*113. *Abbott on Ship.*32, 33, 40. *McIver*v. *Humble,*16 *East,*169. *Young*v. *Brander, 8 id.*10. *Jennings*v. *Griffith,*1 *Ry. & Moody,*42. *Hussey*v. *Allen,*6 *Mass. Rep.*163. *Trewhella*v. *Rowe,*11 *East,*435. *Colvin*v. *Holbrook, 2 Comst.*129. *Cutler*v. *Thurlo,*20 *Maine Rep.*213. *Duff*v. *Bayard, 4 Watts*& *Serg.*240, *Annett*v. *Cairstairs,*3 *Camp.*354.)

6. Wheeler could not be made liable unless he was either actual owner, or had contracted individually to bind himself. The presumption arising from the face of the papers might have shown him to be both. But it was competent to rebut that presumption by proof that he was actually neither, and that Jenkins knew it. The error of the court was in refusing to.admit the evidence, thus permitting the presumption to override the fact. The true course to have pursued was to admit the evidence and submit to the jury what was the intention of the parties as to Wheeler’s personal liability.

II. Captain Jenkins had no right to recover wages of any one.

1. The voyage was an entirety, and, unless fully performed, no wages were earned. *(McMillan*v. *Vanderlip,*12 *John.*165. *Reab*v. *Moor,*19 *id.*337. *Sickels*v. *Patterson,*14 *Wend.*259. *Monell*v. *Burns, 4 Denio,*121. 1 *Pars, on Contracts,*522, *note l. Webb*v. *Duckingfield,*13 *John.*390. *Hernaman*v. *Bowden,*3 *Burr,*1844. *Cunningham*v. *Jones,*20 *N. Y. Rep.*486.)

*590*2.*Freight is the parent of wages ; and where no freight is earned, no wages are payable. *(2 Pars. Mar. Law,*588, 591. *Lady Dunham,*3 *Hagg. Adm.*196. 1 *Pars. Mar. Law,*158, 452.) *Abbott (on Ship.*506, 511, *9th ed.)*says the rule extends to all the officers ; but, in 1856, the English courts said it did not apply to the master. This is not law with us. *(See Johnson*v. *Wissman,*5 *Leg. Obs.*18.)

III. The master’s wages were forfeited by his malconduct . or breaches of duty. And that whether such breach of duty arose from incompetency, ignorance or design. *(Abbott on Ship. 7th Am. ed.*119, *n.*167, 131, *n.*1. *Stone*v. *Ketland,*1 *Wash. C. C. Rep.*142. *Purviance*v. *Angres,*1 *Dall.*180.)

1. If any injury or loss happen to ship or cargo by reason of his negligence or misconduct, he is personally responsible. *(Abbott on Ship.*167.)

2. That responsibility is as well to his employer as to owners of cargo or passenger, and is commensurate with the injury done.

3. The malconduct of the master in this case consisted of the following acts and omissions : The deviation by going into Bahia being four hundred miles out of due course, and two weeks in time. Delay of twenty-eight days in Bahia. Taking in more passengers at Cape tfown, and thus hazarding the ship by violating the law. Deviation of eight hundred and fifty miles in touching at the Cape. Delay at the Cape fourteen to sixteen days to take in water.. Total of three months’ delay, and thus encountered the 'storm. . In not learning to use the condenser. In going to Mauritius, which ■ had so bad a reputation, and was one thousand seven hundred miles out of the course. In offering ship for sale, and thus subjecting the owners to all the consequences of breaking up the voyage. In neglecting to defend against the proceedings on the bottomry, whereby the bond was improperly made to be due. *(Abbott on Ship.*150. *Pope*v. *Nickerson, 3 Story, C. C. R.*465, 488, 503. *Willard*v. *Dorr, 3 Mason,*161.) In confessing judgment for wages, whereby the ship was sold for wages not due. *(Abbott on Ship.*638. *Dunnett*v. *Tom**591*hagen,*3 *John.*154. 3 *Kent’s Com.*188. *Porter*v. *Andrews,*9 *John.*350.) In not obtaining proceeds of ship and cargo, or rendering any account of them. In not forwarding insurance papers, whereby three-fifths of the insurance was sacrificed. In not selling goods to make repairs. (3 *Story’s C. C. R.*465.)

4. The effect of such malconduct was: By the deviations and delays, hazarding insurance, and increasing the hazards and expense of the voyage. (2 *Pars. Mar. Law,*287, 297, 302. *Abbott on Ship.*361-363.) By going into Mauritius, and so managing matters there as to cause or permit the ship to be sold. (1 *Pars. Mar. Law,*406, 409, 434. *Abbott on Ship.*368, 372.) By rendering no account, and omitting to take proper care of the cargo, causing it all to be forfeited and lost. *(Abbott or Ship.*167, 170, *n.*365.) By neglecting to forward account of loss, whereby the owners were compelled to settle an insurance of $51,000 for $20,000. *(Abbott on Ship.*167, 367, ».)

5. Upon this state of things the rule of law is, that if the jury believed that the injury done by the master’s misconduct was greater than the amount of his wages, he could not recover. The judge refused so to charge, though requested.

6. On the contrary, he so charged the jury that they were not permitted to find against the plaintiff, unless they should find that his conduct had caused the loss of the ship, or the breaking up of the voyage.

7. It is insisted for the defendant, that he was entitled to the verdict in either of two events, viz. if the jury should find that the misconduct of the master had annulled the agreement or had inflicted upon the owners damage equal to the amount of his wages.

8. The voyage might have been broken up by the disaster at sea, which compelled the vessel to put in at Mauritius. Yet, the ruling below would permit the master to recover his wages, though, before that disaster, his conduct had endangered the insurance and subjected the vessel to forfeiture, under our navigation laws, and though, after that disaster, he had so acted as to permit the ship and cargo to be sold, with*592out any account ever being rendered to the owners for the avails of either.

IV. All the considerations, thus far, on this point are on the milder idea that, it was a defense, that the injury inflicted by the malconduct of the master was greater than his wages. But it is not intended to 'waive the point of the rescission of the contract of hiring. On the .contrary, it -is insisted that such malconduct put an end to the contract.

1. The deviations forfeited the insurance of vessel, cargo and freight. Such deviation was not necessary, but resulted from the master’s neglect to learn to use the condenser. (2 *Pars. Mar.*Law, 278, 297.)

2. They greatly lengthened the voyage, and subjected the owners to a large increase of expenses, such as wages and passengers.

2. By taking in more passengers at Cape Town, the master hazarded the forfeiture of the vessel. (3 *Story, Laws of U. S.*1722. *Laws of U. S.*1819, *ch.*170.)

4. By his action in the libel suits he suffered the ship to be sold, and the proceeds to be wasted.

5. By omitting to make proper returns he deprived the owners of the power of recovering their insurance.

6. Each of these was a violation of his contract, which was, that he would act according to the instructions of Pelletier, and for the best interest of the bark and owners.

7. And for those violations the owners or parties in interest, whoever they are, in person or by their agent, had a right to regard the contract as at an end. ' This is always so when' one party fails to perform his part, or disables himself from performing it. (2 *Pars, on Cont.*191. *Tompkins*v. *Dudley,*25 *N. Y. Rep.*272.)

The general complexion of the case is, that Wheeler, acting as naked agent, without any interest, and dealt with as such by Jenkins, is to be made personally liable for Jenkins’ wages, though he has never made any effort to collect his wages of the known principals, and though, by his conduct, he sacrificed vessel and cargo, and hazarded and impaired the insurance.

*593Y. Another error was in allowing Jenkins to recover wages beyond the time of the condemnation of the vessel. If he was entitled to any wages, it was only up to the condemnation of the vessel, viz. 12th November, 1853. After that, for any services in taking care of ship or cargo, he was entitled only to a *quantum meruit. (Willard*v. Dorr, 3 *Mason,*161. *Oxnard*v. *Dean,*10 *Mass.*143. *Smith*v. *Tryon,*4 *Day,*105. *Eaken*v. *Thorn,*5 *Esp. 6. Johnson*v. *Wissman, 5 N. Y. Leg. Obs.*18.)

YI. The court erred in refusing to grant a new trial. The court charged, that it was the duty of the master to forward to the owners the papers necessary to recover insurance, and instructed the jury to inquire if his omission to do so had caused damage to the owner in the loss of any amount of insurance, if he had omitted to do so, and if there was any reason for his not doing it. Now it was proved, and not disputed, that he had so omitted ; that, in consequence of that, $30,000 of insurance had been lost to the owners, and no evidence whatever was given of any excuse for not doing so.

1. The verdict was clearly against the evidence and the charge, and ought to have been set aside.

2. The court also erred in refusing to permit a question to Wheeler on that subject.

*0. N. Blade,*for the-respondents, plaintiffs.

1, The contract being in writing, under seal, the defendant 'cannot avoid it by parol testimony. *(Stanton*v. *Camp,*4 *Barb.*274. *Stone*v. *Wood,*7 *Cowen,*453.)

II. The captain had no defense to the bottomry bond. When he published a notice that an act of abandonment had been made, the bondholders had the right to institute their suit against the vessel. *(The Draco,*2 *Sumner,*157, 193, *The Catharine, formerly the Croxdale,*15 *Jur.*232.) *The Heligoland, Swabey, Ad. R.*499. 5 *Jur. N. S.*1179.) The seamen were also entitled to their wages. *(Abb. on Ship. marg. p.*632. *The Neptune,*1 *Hagg. Ad. R.*227. *The Dawn,*26 *Am. Jur.*216. *The wreck of the Massasoit,*7 *Law R.*522.)

*594III. It was the duty of the captain to remain at Port Louis so long as it was necessary to attend to the business relating to the vessel, which he did, and returned home at the first opportunity, arriving here October 11, 1855, and he was entitled to his wages up to that time. *(Willard*v. *Don,*3 *Mason,*166. *Abbott on Shipping,*634.) He should be paid, under his contract, for the whole period. *(The Neptune. The ivrech of the Massasoit, supra.)*

IY. The voyage was broken up by reason of the owners improperly fitting the vessel for sea before she left this port, of which the master was ignorant This entitled him to his wages. *(Hoyt*v. *Wildfire,*3 *John.*520, 521.)

Y. The question of negligence was properly submitted to the jury, and their finding is not against the evidence. *(Butler*v. *Murray,*30 *N. Y. Rep.*88.) Whether the captain was justified in abandoning the vessel was for the jury. *(Ruckman*v. *Merchants’ Louisville Ins. Co.,*5 *Duer,*342.)

YI. Error of judgment on the part of the master, even though loss be thereby sustained by the owners, will not justify a forfeiture of his wages. *(The Camilla, Swabey, Ad R.*312. 6 *W. Rob.*840. *The Thomas Worthinyton,*3 *id.*132, 133.)

By the Court,

Robertson, Ch. J.

The plaintiffs in this case were .entitled *prima facie*to recover, upon the defendant’s covenant under seal, the monthly stipend of the decedent provided for therein, upon proof of its execution, of the decedent’s services, and his inability to continue them, caused by acts beyond his control. The elaborate argument of the learned counsel for the defendant, as to the absence of any liability of a mere mortgagee in possession of a vessel, for the pay of her master or crew, quite applicable, perhaps, in case of a parol contract of employment, is wholly beside this case. The defendant, if not an owner, became a surety by such covenant, and could avail himself of any privilege to which he was entitled as such, but to no others, except those arising out of the contract itself. It is true, many considerations *595were admitted into the case upon the trial, as if the contract were only by parol; but as the consequences of its being under seal were not waived, all evidence of the mere agency of the defendant was immaterial, and properly excluded.

So positive a sealed agreement must necessarily control any general rules of law as to the power, rights and duties of masters of vessels, if they in any way conflicted with it. So that the tenability of the objection to the plaintiffs’ recovery upon the ground that the contract was entire, and that they could not recover any thing, because the intestate had not completed the voyage out and back, would be rendered somewhat doubtful by the provision, that his compensation was to be a certain sum “ per month for each and every month.” There is nothing in the covenant itself to make such payments depend upon the completion of the whole voyage, or the captain (the original plaintiff) take upon himself the risk of her ability to perform it. At all events, any such omission by the defendant to have such vessel properly fitted for such voyage, as might ultimately be the cause of defeating it, or any subsequent occurrence beyond the plaintiffs' control, which broke it up, would excuse him from performing it, and still leave him a right of compensation during his actual service.

There is no qualification in the defendant’s covenant making his liability to depend upon the earning of freight by the vessel, and therefore the failure to earn it did not deprive the plaintiff of compensation. Hor would he lose it in case of an ordinary employment of him by parol. Like most proverbs, the proverbial expression, that “freight is the mother of wages,” is not universally true, even in regard to seamens’ wages, *(The Massassoit,*.7 *Law Rep.*522 ;) still less does it affect the compensation of the master, which is not properly wages. He is not supposed to trust to either vessel, cargo or freight, and therefore has no lien upon either for his pay. Indeed not even for his advances, in England, *(Smith*v. *Plummer,*1 *Barn. & Ald.*575 ;) although otherwise as to freight, in this state, *(Van Bokkelin*v. *Ingersoll,*5 *Wend.*315;) but not on the ship. *(Ship Grand*Turk, 1 *Paine C. C.*73.) *596Even his contract is held in England, not to be a subject of admiralty jurisdiction, *(Ragg*v. *King,*2 *Stra.*159 *;)*although' a different rule is adopted in this country. (*Willard*v. Dorr, 3 *Mason,*161.) The stimulus to duty of ordinary seamen, by making their wages depend upon the success of the voyage in earning freight, is not needed in the case of a master. •Sufficient safeguards for his vigilance and fidelity are found in his greater intelligence, skill and experience, as well as his character and position, which makes him fear a loss of reputation, to say nothing - of his being generally able to respond in damages for any injury caused by his neglect or ignorance. His rights rested solely on the terms of his contract, with which the earning of freight had nothing to do.

It will hardly be necessary to consider any question of damages for which the captain was liable, short of a forfeiture of his pay. For, in the first place, it is not clear that the defendant, being a mere surety, could recoup such damages, which might be the subject of a separate action by the owners ; in the nest place, no claim thereto is made by the answer, nor was the presiding judge requested to submit the question of them to the jury. Although, in fact, he did instruct them to deduct from any amount due the plaintiffs, any damages to which the owners were entitled by reason of the captain’s misconduct, particularly by-the deviations from the destined voyage, the failure to repair at Port Louis, and neglect to send back proper information to enable the owners to recover the amount of insurance, if they were the result of it.

The learned judge, however, left it to the jury generally to say whether *“*the voyage was broken up by reason of the negligence, unskillfulness, fault or fraud of the captain,” and if they go found; he instructed them to find a verdict for the defendants; besides directing them to deduct the amount of certain damages from any sum due the captain. He even went so far as to say, that they were to deduct therefrom damages caused by deviations from the original route, although they might not have contributed to her irltimate loss, provided *597they went beyond the value of the vesseland even for any neglect to send home books and documents necessary to substantiate claims for insurance. This was certainly as favorable a charge for the defendant as he was entitled to. For neither by the common or maritime law, could any act of the master, which did not go to the whole consideration for the promise to pay him,- such as breaking up the voyage or rendering it entirely unprofitable, deprive him absolutely of his pay.

In this case the justification presented of the master’s nonperformance of his contract, consisted of the condition to which the vessel was reduced by a storm, after leaving Cape Town, and his inability to have her repaired at Port Louis, in which he was compelled to seek shelter ; and his consequent compulsory abandonment of her there to the underwriters. Her sale, under the libel by the seamen, was a mere consequence of the same combination of circumstances. . The statement in the complaint, and the evidence of the seizure of the vessel, in order to satisfy a 'bottomry bond, was wholly immaterial upon the question of justification of the master’s conduct.''

Much of the evidence on the trial was upon matters not appearing in the pleadings, and upon issues hardly raised by them. Evidence was admitted of an insufficient equipment of the vessel on her departure from New York, which was nowhere alleged in the pleadings, but was the first moving cause of her final loss *;*this led to evidence as to the condenser and its availability. Perhaps the answer tendered such issue by alleging the needlessness of the deviation to Bahia, and claiming that such deviation caused the encounter with the storm and subsequent deviation to Port Louis, with all their consequences. The evidence, however, as to the impossibility of procuring at Port Louis the necessary means of repairing such vessel, the costliness of such repairs, and the sale of her under the decree for seamens’ wages, with proof of all the proceedings in admiralty, although not warranted by the pleadings^ seems to have been admitted by tacit consent. These matters were undoubtedly material to the parties’ rights, *598as involving the propriety of the captain’s course, and the pleadings, if necessary, may be made to conform to the material facts established by such evidence.

There was abundance of evidence on the trial to show the unseaworthiness of the vessel on her departure from New York, in the deficiency of spars, rigging, small boats, ballast and water. An insufficient supply on board of the last would not be made up by having a condenser : which might get out of order as it did in this case. If it was in working order, the constant use of it might be proper to repair the consumption, in order to meet extraordinary contingencies, and a knowledge of its use might be requisite in a skillful captain. But no question of that kind could arise in this case, since the machine became useless, until which time it was worked properly. The abandonment and sale of the vessel, caused immediately by the storm, and indirectly by the deviation to Bahia, is, therefore, ultimately to be attributed to the original deficient equipment of the vessel. And there is no room for dispute on that subject, from the evidence.

There was opposing evidence offered to outweigh the evidence given on the trial, of the damage to the vessel in question by the storm encountered by her, of her being rendered unfit thereby to go to sea from Port Louis on her destined voyage; of the unprofitableness of repairs to her there, and the impossibility of procuring funds for her there for that purpose; of her survey by the captain of the port, assisted by three other shipmasters, her condemnation and consequent abandonment to the underwriters ; the attempt at selling her thereafter, and subsequent sale under the decree of the court of admiralty in the suit by the crew for their wages. All the facts, which such evidence, therefore, tended to prove, must be assumed to have been found by the jury. If so, they form a perfect justification of the desertion of- the vessel by the plaintiff.

The sale of the vessel under the decree in admiralty, of course would only have formed such justification, in case it was inevitable; that is, if no legal resistance could have been *599made to it, or any proper resistance offered was overruled by the positive decision of the court. If the voyage was terminated, even although by the master’s misconduct, the seamen would probably be entitled to their wages, and the remedy of the owners would be against him only, since there was still a right to freight *pro rata itineris.*But if such voyage was terminated by necessity, *a*fortiori, they would be entitled to their wages, and the question of necessity might therefore arise in such a case. *(Abb. on Ship.*632, *marg. p. The Neptune,*1 *Hagg. Ad. R.*227. *The Dawn,*26 *Am. Jur.*216.) So far as the shattered condition in which she arrived at Port Louis is concerned, the plaintiff is exculpated, as I have shown, by the finding of the jury. It only remains to be seen whether she could have been repaired and sent to sea upon her voyage.

Efforts of the plaintiff to raise money for repairs were proved, and the defendant failed on a cross-examination of the witnesses to shake their statement or show that money could have been raised at that place for the purpose. For that reason, as well as on account of the difficulty of procuring the repairs and the unprofitableness of them as they would exceed half the value of the ship, the captain was justified in abandoning her to the underwriters and acknowledging in court that the wages of the crew were due.

I do not find any errors in the admission or rejection of evidence on the trial, or giving or withholding any instruction from the jury. The refusal to charge absolutely, that as matter of law the deviations were fatal to the plaintiff’s right of recovery was correct. The instruction given, which left the propriety of such deviation as matter of fact for their consideration, was all the defendant was entitled to. The refusal also to permit the jury to decide whether Port Louis was the *nearest and best*port or harbor to which to navigate the vessel after her disaster was also proper, when the only evidence on the subject was, that it was the nearest *civilized*port, and even if Madagascar was nearer, “nothing could have been done or got there.” The refusal also to charge that the want of water was no excuse for any deviation if the con*600denser was capable of producing water enough for the persons on board, was also proper, since there was uncontradicted evidence in the case that it was out of order, incrusted on the inside with salt and the whole apparatus so warped as not to be capable of working. The instruction that if such condenser “ was in good order and of sufficient capacity to supply water,” and they were “'in general use in 1853, the captain was bound to know how to use it and there was no necessity to put into any port to obtain water” embraced every point necessary to be submitted.

The abandonment of the vessel and consequent termination of her voyage growing out of her crippled condition and want of means to repair her, took place before any seizure of her under admiralty process.

Making the proper .intendments to sustain the verdict, it must be assumed that they found under the instructions to them, the following facts :

*First.*That the first deviation to Bahia was caused by a. want of water or ballast, or both, and that such want of water was caused by an original insufficient supply, which ' deficiency could not be remedied by the use of the condenser. And that the stay at such place was not unreasonable.

*Second.*That the stopping at Cape Town was due to a similar failure of water, and the stay there was not unreasonably long.

*Third.*That the putting into Port Louis was rendered necessary by the injury received from the storm encountered.

*Fourth.*That the expense of repairs at Port Louis would have exceeded half the value of the vessel, and the plaintiff could not, with due diligence, have obtained funds to pay for such repairs, and her abandonment to the underwriters became thereby necessary.

*Fifth.*That the termination of such voyage by the abandonment of such vessel, and its acceptance, was not caused by any default on the part of the master.

Some questions seem to have been.raised on the trial growing out of the evidence adduced to establish a liability of the *601captain for damages for neglect after the sale of the vessel; the first being that he did not defend the suit brought by the holders of the bottomry bond. The breaking up of the voyage entitled them to recover therein, notwithstanding the delay provided for therein, until after the arrival at Australia. *(The*Draco, 2 *Sumn.*157, 193. *The Catharine,*15 *Jur.*232. *The*Heligoland, 5 *id. N. S.*1179. *Swab. Adm. R.*499.) Another ground of complaint was that the plaintiff did not send to the owners information and documents necessary to enable them to recover insurance. The facts of such transmission and of any excuse for its omission were submitted to the jury. The question of damages by any act or omission of the plaintiff was also submitted to the jury generally as a subject of deduction from Ms claim, although no allegation of such damages was contained in the answer. And they evidently found against it. But no special question of damages from an omission to forward information or documents, was submitted to the jury as supposed in the points for the defendant.

I am compelled to differ with the learned judge, before whom the cause was tried, in regard to the period of time, for which the plaintiffs ought to have recovered the compensation of the decedent represented by them. Of' course all connection by him with the. vessel, as its master, ceased with its sale, and any subsequent agency as to its proceeds, or the cargo, or the business connected with the voyage, ceased with his departure from Mauritius. After such sale he did not act as master, but as a mere agent, with probably diminished services and responsibility. For such services he was only entitled to a reasonable compensation. *(Johnson*v. *Wissman,*5 *N. Y. Leg. Obs.*18. *Willard*v. Dorr, 3 *Mass. Rep.*161. *Oxnard*v. *Dean,*10 *id.*143. *Smith*v. *Tryon,*4 *Day,*105. *Eaken*v. *Thorn,*5 *Esp.*6.) But the difficulty in this case is to determine what allowance shall be made. The rendering of such services, when left in a distant port remaining necessarily without means, unable to make any new bargain for his pay, and obliged to look after the' sale and proceeds of the vessel, as was required in this case, would seem *prima facie*to entitle *602the captain to a continuance of the same pay as if at sea, and make it incumbent on the owner to prove any diminution in value and its extent. This, however, would not extend to the time of a voyage home," although he might be perhaps allowed his expenses, but of them there is no proof in this case, and perhaps also any enforced stay even after the affairs of the ship were settled. Most of the cargo appears to have remained unsold until the master’s departure for Hew York, in May, 1854, requiring of course some attention from him until then. The plaintiffs are not entitled to recover any pay beyond that time with interest until the time of trial.

The judgment must be affirmed without costs, if the plaintiffs consent to reduce the verdict and judgment, by deducting the decedent’s pay from May, 1854, to the time of his arrival in Hew *York;*otherwise it must be reversed, and a new trial granted. *(a)*

(a)

 This case has been lately substantially affirmed in the Court of Appeals, except as to the time of compensation,.