New London Ship & Engine Co. v. Simpson

Bbaley, J.

This is an action of contract to recover the price of certain parts furnished and expenses incurred by the plaintiff in the installation of an engine in the schooner Aspinet. The judge, by whom the case was heard without a jury on an auditor’s report in favor of the plaintiff and the evidence of the defendant, found for the plaintiff, and the *78 case is here on the defendant’s exceptions to his refusal to give the following requests.

“On all the evidence the plaintiff is not entitled to recover.” “The delivery of parts for the engine at the yard of Bertelsen and Petersen Company where the Aspinet was being fitted out for her owner Hoie, did not constitute an acceptance and actual receipt of said parts by the defendant Simpson, within the statute of frauds.”

“There is no legal ground for charging the defendant upon any promise by him to pay the amount claimed by the plaintiff since there was no consideration for any such promise and the statute of frauds also precludes any such action, the promise not being sufficiently set forth in writing.” “If the plaintiff knew that the parts in question were furnished for the schooner Aspinet, the vessel itself was a disclosed principal and a ship broker, acting as a mere agent for the vessel and not being in fact an owner, is not personally hable.”

The judge was not bound to believe the defendant, and on the report he was warranted in finding that the parts supplied and the services performed were on the defendant’s personal order and were charged to him, and that the plaintiff, while knowing from his letter heads that the defendant was a ship broker, had not heard of Claus Hoie, an inhabitant of Norway, who was the owner of the vessel. It was only after the installation had been completed that Hoie hired a former owner as captain, and the vessel sailed for Norway. The vessel itself was not a principal, and the case at bar is distinguishable from Goodenough v. Thayer, 132 Mass. 152 , relied on by the defendant. A general finding was warranted that the defendant entered into the contract without disclosing his principal, and that there was no mutual intention as in Davis v. Cress, 214 Mass. 379 , that he should not be bound. It is settled that under such conditions the agent of an undisclosed principal may be treated as the principal. Merriam v. Wolcott, 3 Allen, 258 . Welch v. Goodwin, 123 Mass. 71 . Ginn v. Almy, 212 Mass. 486, 504 .

The parts were shipped to the yard of Bertelsen and Petersen Company where the schooner was moored, and they were *79 received and used in the installation of the engine. The shipment having been made under the defendant’s direction, and accepted by him, as the judge could find, the statute of frauds is not a defence. Howard v. Borden, 13 Allen, 299 . Kemensky v. Chapin, 193 Mass. 500, 507 . G. L. c. 106, § 6, (1).

The requests were denied rightly, and no error of law appearing the entry must be, Exceptions overruled.