M'Gregor v. Brittingham

Bullard, J., delivered the opinion of the court. In this action, the plaintiff seeks to recover of the owners of the brig Ophir, the amount of certain advances, made by him, and indemnity against a bond by him subscribed, upon which the vessel was released from seizure ; the plaintiff remaining liable in the event of her final condemnation, in the Supreme Court of Mexico. He further claims maritime interest on the amount, upon the allegation, that one of the owners who was at the same time master, agreed and bound himself to hypothecate the brig for the amount of the advances and of the bond, and to pay him the usual rate of maritime interest, which he alleges to be-twelve and a half per .cent., but that after the advances were made, and the brig released upon the execution of the bond, the master and part owner departed with the brig clandestinely, from the.port of Campeachy, without executing the bottomry bond, and leaving behind him a part of the ship’s papers. A party making advances cóunt'of a°vessei and^vvho"^exe-cutes a bond to lease from seizure, conditioned to pay the amount of forfeiture, in the event of its being declared by the supreme judicial tribunal of the country, is entitled to recover full in-demnityforsuch advances, and the penalty of his bond from the owners, reserving to the latter the right to recover hack the penalty, if the forfeiture is remitted. It appears that the captain was and ia owner of one-fourth 0f the brig, and that the owner of the other three-fourths abandoned to the underwriters, who are now made parties in su^’ ^ having been seized in the port of New-Orleans, at the suit of the plaintiff. The principal facts of the case are substantially proved, not only by the testimony of witnesses, but by the letters of the defendant, Britlingham; that the latter promised to execute a bottomry bond, as a counter security to the plaintiff, and that the money should be payable a short time after the arrival of the Ophir in a port of the United States, we have not the slightest doubt; and that the plaintiff relying on his promises, made the advances required of him, and executed the bond upon which the brig was released from seizure, subject to the final decision of the appellate tribunal, is equally certain. ^ a koitomTy bond had been executed according to promise, the owners, other than Brittingham, might, perhaps, have contested his authority and the validity of the hypothe-cat*on- But such is not now the question before the court, The advances made by the plaintiff and the liability incurred by him in executing the bond for the release of the brig, were useful and even indispensable to all concerned, and he is entitled to liberal remuneration from them. At any rate, he is legally entitled to the indemnity stipulated, whether in the shape of a specific performance of the contract on the part of the master and part owner, or in that of damages for the non-performance of the contract. The indemnity in relatiouto the bond towards the Mexican authorities, was to have been, the payment of the amount to the plaintiff sixty days after the arrival of the brig in the United States. The Parish Court, however, in our opinion, erred, in' giving judgment for the plaintiff absolutely for the amount of the bond, without mailing any provision for its reimbursement in the event of McGregor being released from any further liability on his bond, or the affirmance of the decree of the tribunal from which an appeal had been taken. The money in his hands was evidently intended only as a coun *189 ter security, to be refunded in the event of the plaintiff not being made liable on his bond. The court further erred, in our opinion, in allowing an item in the plaintiff’s account of three hundred and eighty-nine dollars and sixty-two and a half cents for tonnage duties, advanced by him on account of the brig. It appears in evidence, that this payment of duties was conditional, and that in the event of the final condemnation of the vessel, the amount should be deducted from the bond ; that is to say, that McGregor would have that much less to pay. That amount was therefore included in the bond, and the plaintiff cannot recover both. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be reversed, and proceeding to give such judgment as should, in our opinion, have been rendered below ; it is further ordered and decreed, that the plaintiff recover of the defendants, to be paid out of the property attached, the sum of six thousand eight hundred and twenty-three dollars and twenty-five cents, together with the costs of the Parish Court, reserving to the defendants their right to recover back five thousand and four dollars, the amount of the plaintiff’s bond of the 14th of December, 1835, upon their making it appear that the plaintiff has been exonerated from any further liability on account of the same, in any other way than by payment, according to its tenor and conditions; and it is further ordered, that the plaintiff pay the costs of the appeal.