Hynes v. Kirkman

Martin, J.,

delivered the opinion of the court,

The plaintiff claims one year’s wages as master of the defendant’s steamboat, having been discharged from the command of her without a just cause.

The answer alleges, that the' plaintiff abandoned the boat, before the expiration of the year, and is entitled to wages for the time he was on board; that he has been paid therefor, and he still owes a balance, for which judgement is prayed.

The plaintiff had judgement; but his wages were restrained to the period stated in the answer, and he appealed.

The testimony shows that the steamboat is the property of the defendant and James Kirkman, by whom she was built; and that they constitute the firm of T. & J. Kirkman; that the defendant engaged the plaintiff as master of the boat, by a writing in his, the defendant’s, sole name, and not in that of the firm. That on her last trip from New-Orleans to St. Louis, the boat stopped at Waterloo, where J. Kirkman came on board, and soon after a sum of money having been stolen from the boat, and suspicion lighting on a free negro, one of the hands, he was taken by J. Kirkman and others over the Tennessee River, and flogged, in order to obtain his confession. But he did not admit any thing, and was flogged a second time on board. All this was done by the directions of J. Kirkman, who encouraged those he employed for that purpose, by the assertion that they incurred no liability to damages thereby, but the whole responsibility for the treatment of the negro rested on the boat. She afterwards proceeded to St. Louis, where the negro brought suit, and J. Kirkman advised the plaintiff to cross over to the Illinois side, to avoid being taken by the sheriff and afterwards to go off and return when the danger of being arrested was over. This was accordingly done. Afterwards the boat remained at St. Louis to undergo repairs and alterations, and J. Kirk- *50 man placed another master on board, and the plaintiff on his return afterwards, was not allowed to resume the command.

The act of onememberof a commercial firm who own a steamboat engaged in carryinggoods on freight, binds the others insólido for any contract he may make in relation to the boat. And the circumstance of his conti'acting in his sole name, and not in that of the firm, while the boat is owned and navigated by the firm, binds all the partners in the same manner as if the contract had been clothed with the signature of the firm. If the master of a steamboat who is employed by the year, be compelled before its expii'ation to abandon the boat in consequence of the illegal conduct of one of the owners, he is entitled to full wages, and may claim them from all or either of the partners.

There cannot be any doubt that if the defendant had done what it appears J. Kirkman did, the plaintiff would be entitled to recover his wages for the whole year. Indeed, the appellee’s counsel has had the candor to admit all the allegations, except that J. Kirkman is a partner of the defendant, his joint owner of the boat. This, however, in our opinion, is fullyestablished by the testimony, and our inquiry is directed only to his powers, as such, of binding the defendant.

The testimony shows the firm of T. & J. Kirkman, of which the defendant and J. Kirkman were the only members, was a mercantile one; and that the boat was employed in carrying goods for hire, for one of the witnesses speaks of her laying at Waterloo and unloading her freight.

Hence, it follows, that as the copartner of the defendant in a mercantile firm, who owned the boat, or as joint owner of a boat, engaged in carrying goods on freight, the defendant was bound in solido with J. Kirkman, for the acts of the latter in relation to the boat. The circumstance of the defendant having engaged the plaintiff as master of the boat, in his, the defendant’s, sole name, and not in that of the firm, while the boat was owned by and navigated for the firm, does not prevent the contract being that of the firm, binding both partners, in the same manner as if it had been clothed with the signature of the firm; and susceptible of being affected in its consequences, by the acts of either partner. 8 Martin, N. S. 390.

The plaintiff, having been compelled by the illegal conduct of J. Kirkman, to abandon the command of and to leave the boat, is entitled to his full wages till the end of the year, and may claim them from both or either, of the defendant and J. Kirkman. The first judge, in our opinion, erred in confining him to wages up to the day of his departure.

Deducting, therefore, from the year’s wages at one thousand five hundred dollars, the amount of what was paid to the plaintiff, i. e. five hundred and twenty-two dollars and sixty- *51 three cents, there is due to him nine hundred and seventy-seven dollars and thirty-seven cents.

It is, therefore, ordered, adjudged, and decreed, that the j udgement of the District Court be annulled, avoided and reversed, and that the plaintiff recover from the defendant, the said sum of nine hundred and seventy-seven dollars and thirty-seven cents, with costs of suit in both courts.