Chambers v. Grantzon. recommended a sale of the véssel, and on the 12th day of January, 1855, the vessel and a part of the cargo was sold, the residue of the cargo being disposed of on the first of February, 1855. The gross amount of the first sale was £2,335 3s. 9d., the expenses £385 12s., leaving a net balance of £1,949 11s. 9d. Charles W. M. Heddle, (under whom the defendant held possession) became the purchaser of the schooner at such sale. Testimony was also adduced showing, or tending to show, the condition of the vessel on her arrival at Sierra Leone, and also at the time of sale, a portion of which evidence was in conflict with the statements, or the correctness of the views and recommendation contained in the report made by the surveyors. It also. appeared that vessels could be repaired at Sierra Leone. The actual cost of repairs made upon the schooner, with which she left Sierra Leone and reached the port of New York, was £175. When the evidence on the part of the plaintiff was closed on the trial, the counsel for the defendant moved to dismiss the complaint, whereupon the court overruled the motion to dismiss, and directed a verdict for the plaintiff, subject to the opinion of the court on questions of law, with liberty to turn the case into a bill of exceptions, to be heard first at the general term of the court, with liberty for the general term to order a non-suit. To which ruling the defendant excepted. The court further announced, "that the only question for the jury to pass upon would be that of the value of the vessel," and charged the jury thereupon. The jury found a verdict for plaintiff for the recovery of the vessel, and found the value of the vessel to be $7,200; and the court directed the entry of the verdict, subject to the opinion of the court upon a case to be made, with liberty to turn the same into a bill of exceptions, and that the case be first heard at the general term. A motion was made at the same (trial) term, October 20, 1859, before the same justice, upon the minutes of the trial, to set aside the verdict and for a new trial, on the ground that the verdict rendered is against the weight of evidence Chambers v. Grantzon. and the damages excessive; and after counsel for the respective parties were heard and due deliberations had, the motion was denied with costs. The case now comes to the general term, in pursuance of the aforesaid order and direction, for judgment upon the verdict under the direction given at the trial. William Tracy, for Plaintiffs. E. C. Benedict, for Defendant. BY THE COURT. MONCRIEF, J.-A material, if not the only or most important question arising upon the issue and the evidence adduced on the trial of this action, was whether the sale of the schooner by the captain, and its purchase on behalf of the defendant, were made under circumstances which, in fact and judgment of law, would warrant such sale and carry a title to such purchaser. All the cases admit that it is not sufficient that the sale was bona fide and intended for the benefit of all concerned; it must have been necessary. (Parson's Mer. Law, 375.) In Somes v. Sugrue, (4 Car. & Payne, 276,) it was said: Undoubtedly the word "necessity" is not to be confined. to, or so strictly taken as it is in its ordinary acceptation. There can, in such a case, be neither a legal necessity nor a physical necessity, and therefore it must mean a moral necessity; and the question will be whether the circumstances were such that a person of prudent and sound mind could have no doubt as to the course he ought to purThe point principally for consideration will be, the expenditure necessary to put the ship into a condition to bring home her cargo, the means of performing the repairs, and the comparison between these two things and the subject matter which was at stake; and it must not be a mere cast, not a matter of doubt in the mind, whether the expense would or would not have exceeded the value; but it must be so preponderating an excess of expense that no reasonable man could doubt as to the propriety of selling, under sue. Chambers v. Grantzon. the circumstances, instead of repairing. (Rogers v. Murray, 3 Bosw. 357.) The master can sell the ship only in cases of extreme and urgent necessity; that is, only when it seems in all reason impossible to save her, and a sale is the only way of preserving for the owners or insurers, any part of her value. Actual necessity, not the pretence of its existence by the master, must exist. (Pars. Mer. Law, 375, 376; 4 Wend. 52.) Such a necessity (the captain acting morally), creates an exception, and will excuse his departure from the original duty cast upon him of navigating and bringing home his vessel. (Abbott on Ship., 4th ed. 243.) In the case of the ship Lady Banks, Cannan v. Meaburn, (1 Bing. 243,) it was submitted to the jury to find: 1st. Whether the master appeared to have acted, according to the best of his judgment. 2d. Whether the sale was conducted fairly and honestly. 3d. Whether there was a necessity for the sale of the ship. In 8th Taunten, 755, the jury found that the master had acted throughout the whole transaction fairly and bona fide for the benefit of all concerned, and that the sale was honestly, fairly and properly conducted, and directed with a view to the interests of all parties concerned. The court called upon counsel to point out how it appeared by the special verdict that the sale was necessary, and after hearing some observations from him to show that the necessity was to be inferred from the finding of the jury, expressed a clear opinion that the necessity did not appear, and awarded a venire de novo for the purpose of trying whether it existed or not. The general term of this court, in Brower v. Orser, (2 Bosw. 357,) held it was irregular to take a verdict subject to the opinion of the court at general term, when there are facts to be settled upon contradictory or doubtful testimony, and that the general term has no right of itself, to deduce facts from evidence in order to found a judgment. (3 Bosw. 360; 16 N. Y. R. 602, 608.) Alger v. Raymond. If then the finding of facts, before alluded to, was material, and none appears in the case, and the case in that respect was withdrawn from the jury, it follows that a new trial must be granted. In the view taken, it is unnecessary to discuss the other questions raised at the argument. A new trial ordered with costs to abide the event. ADDISON ALGER, Plaintiff and Appellant v. JULIA RAYMOND, Administratrix, and SPENCER GREGORY, Administrator of James Raymond, dec'd, Defendants and Respondents. 1. Where, in an action brought against M. and R., to recover of them, as joint contractors, with the plaintiff, the value of materials furnished and work done by him in erecting a building, it appears that the work was done and materials furnished under a written contract to which the plaintiff and M. were alone parties, R. cannot be held liable, even though it appear that the building was erected on his land; and that he performed some acts of supervision and endorsed M.'s notes, which were used in making payments on account. 2. To justify a recovery against him, the evidence must at least justify the conclusion of fact that the contract was made for the joint benefit and account of M. and R., and for their mutual risk and profit, there not having been any communication between R. and the plaintiff. 3. Where the facts formally found by a referee authorize the judgment he orders, it will not be reversed merely because his report does not formally dispose of all the issues, where there is no evidence in the case which warrants a finding of any of the issues not formally passed upon, in favor of the appellant. 4. A creditor's uniting with one of two joint debtors in his petition for a discharge under the two-third act, and a discharge of such debtor, releases the other debtor from liability. (Per HOFFMAN, J.) (Before BOSWORTH, Ch. J., and HOFFMAN and ROBERTSON, J. J.) THIS is an appeal by the plaintiff from a judgment entered in favor of the defendants upon the report of a referee. The action was originally commenced against Alvah Mann and James Raymond; and the plaintiff, by his complaint, claimed to recover of the defendants jointly for work by him done, and materials furnished toward the Alger v. Raymond. erection of the Broadway theatre in the city of New York. The claim was to recover what the work and materials were reasonably worth. The defendant, James Raymond, appeared, and put in his answer, by which he denied any joint or individual liability, and, among other things, alleged that the work was done and the materials were furnished by the plaintiff, for, and on the sole account of the defendant, Mann, "and under, and in pursuance of a written contract in that behalf made between the said plaintiff and the said Alvah Mann." To the answer the plaintiff put in a reply, admitting that the work, labor and materials were furnished and provided by the plaintiff in pursuance of the written contract, but alleging that he was induced to enter into the contract by the fraudulent representation of Mann, that he alone was interested in the erection of the building, whereas both defendants were jointly interested therein, and also alleging that Mann, without sufficient cause, refused to permit the plaintiff to proceed with his contract, and finish the same in pursuance of the terms thereof. While the action was pending on the issues so framed, the defendant Raymond died, and the action was continued. against his personal representatives by supplemental complaint filed for that purpose in pursuance of an order of this court, made on the 24th day of July, 1855. The plaintiff, by his supplemental complaint, among other things, alleged that in 1851, while the action was pending, he united with Mann in a petition for the discharge of him, the said Mann, from his debts under the two-third act, and that Mann was afterwards discharged under that act. The action was referred to Thomas Nelson, Esq., as sole referee, who found and reported, "That the work done and materials furnished, for the value of which a recovery is sought in this action, were done and furnished under a written contract made between the plaintiff and one Alvah Mann, which contract was not produced before the referee, nor its contents or terms proved on the trial." To which the plaintiff excepted. |