1862.

TURNER

V.

OWEN.

Chambers objected that after articles had been signed evidence of previous parol representations was not admissible; but

COCKBURN, C. J., said, when a man signs articles to go on board ship there is an implied warranty that the vessel is seaworthy.

The plaintiff stated that the captain had told him before he signed the articles that he would get more men, but that afterwards he said he could not get the full number of them, and then, after the signing of the articles, entered into the alleged agreement with the crew, which the plaintiff said was signed in his presence, and in which, it will be observed, the extra money is promised as compensation; so that according to the case for the plaintiff the money was promised as compensation, not merely for services already agreed for under the articles, but for the nonperformance of what might be deemed perhaps a previous warranty or stipulation, on the facts of which the articles had been signed, that a certain number of men should be engaged. The plaintiff stated that on the voyage home he had to work at the pumps constantly, and, in addition, he stated that the vessel was not seaworthy.

At the close of the case for the plaintiff, Chambers, for the defendant, submitted that there was no case, for that there was no implied warranty of seaworthiness, as between the owner and a seaman signing articles, especially when at a foreign port. And he cited Abbott on Shipping, p. 616.

COCKBURN, C. J., said, if after a seaman had signed articles he found that it was not safe to sail in the ship, he was not bound to sail in her. And if this was so, at all events, if the danger should be so imminent that he would be justified in deserting the ship, he might make a new contract, which would be valid, in consideration of his thus consenting to risk his life.

Evidence was adduced on behalf of the defendant, that

there was a fair voyage home; that it would have been quite safe to come home with the old crew; and that the captain had more; and that after the repairs the ship was fit for the homeward voyage.

COCKBURN, C. J. (to the jury).—When a seaman has signed articles, he cannot claim extra remuneration for the same services as are included in the articles. On the other hand, when he signs articles it is implied, on the part of the owner, that the ship shall be reasonably fit for navigation, i. e., shall be seaworthy. And if, before the ship sets sail, the seaman discovers that she is one in which he cannot safely embark, he can refuse to do so, and enter into a new contract. The question seems, therefore, to turn upon the facts.

Was the ship seaworthy or not when the captain made the contract?

Verdict for the defendant (a).

(a) See Harris v. Carter, 3 E. & B. 559, that such a contract would be void in case of desertion by other seamen. See also Clutter

buck v. Coffin, 3 M. & G. 842, as
to an original executory agreement
to pay more than the regular rate
of wages.

1862.

TURNER

v.

OWEN.

Coram Cockburn, C. J.

ATKINS v. PERRIN.

ACTION for slander of title.

Lush and Hance for the plaintiff.

Hawkins and Herschel for the defendant.

London Sittings. Trinity Term. In an action for slander of title, defendant having issued an advertisement, offering

The declaration stating that the plaintiff was the widow a reward for

the production of a will of a

deceased person whose property the plaintiff was about to sell, as administrator; after having been told by the attorney for the deceased that there was no will:-Held, that the question was whether, after this, he had an honest and reasonable belief that there was a will.

1862.

ATKINS

ย.

PERRIN.

of a Mr. Robert Atkins, and the defendant was a builder. It seemed that Robert Atkins was a very old man, and in April, 1860, he married the plaintiff, who was his housekeeper; he died in August the same year intestate. The plaintiff took out letters of administration, and put up some of the property for sale, including the property in question leaseholds. As soon as the advertisement of the sale appeared the defendant issued handbills, offering 2501. reward for the production of any will made by Robert Atkins. The advertisement was in these terms:-" Re Atkins, deceased. To solicitors and others. 2501. reward. The above reward will be given for the production of any will of the deceased since the 1st April, 1860-the date of his marriage he having died on the 6th August, 1860, in his 70th year," &c. On the day of the sale the defendant attended the auction-room, and so acted that no one would bid, and there was an end of the sale. The defendant called on the solicitor of the deceased and asked about a will, but he was informed that, although the old man had given instructions for his will, no such document had been executed. In twelve months after the time that the first sale was intended the property was again advertised. The defendant then issued another set of handbills, in similar terms, offering a reward of 3001. for the production of a will. He attended the sale, and said the title to the property was disputed, and that sale was prevented. The plaintiff then brought this action, with a view of preventing a recurrence of these acts, and of recovering the expenses to which she had been put in the sales, &c.

The defence was that the plaintiff's husband and the defendant were very old friends, and that three weeks before his death the defendant called on the old man, who told him he had arranged his affairs. Defendant said he hoped he had done it satisfactorily. Deceased said he had, and from this the defendant said he believed that the old

man had made a will. The defendant was called to prove this, and stated that when he issued the handbills he believed there was a will, and he never should get rid of that impression. He bid for some of the property at the sale.

The LORD CHIEF JUSTICE said it was for the jury to say whether upon the second occasion the defendant had a sincere and genuine belief that there was a will. And even if they thought he had that honest belief, did they consider it a reasonable one, such as a reasonable man would act upon?

The jury found that he had not that belief.

Verdict for the plaintiff, damages 541. 7s.

1862.

ATKINS

v.

PERRIN.

THOMPSON v. CLARK.

5

DECLARATION
on a contract by the defendant, that in
consideration that the plaintiff, at his request, would pro-
cure a loan to him of 7,000l. at 5 per cent., on the security
of a ship, &c., the defendant would execute a legal mort-
gage of the ship as such security, and pay the plaintiff
per cent. commission, and also all legal charges.
ment of performance on the part of the plaintiff
curing the loan, &c. Breach, that the defendant had
title to execute a legal mortgage, whereby, &c.
for commission.

J. Brown for the plaintiff.

H. James for the defendant.

in

London Sittings.
Trinity Term.
On a contract
in writing by

proposed bor-
rower of money

to execute a

legal mortgage on a ship and pay commission

Aver- to the plaintiff

on procuring pro- the loan: Held,

that this

not primâ facie

Count mer

to

meant a first mortgage, but, on the evidence, it was left to the jury whether the

parties so agreed, and, the loan being obtained, but withheld, the property being

already mortgaged, held

On the 3rd November, 1861, the defendant had written, and for commission, to one Dodd, an attorney, that he was desirous to purchase a ship for 25,000l., and, in order enable him to pay for it, required 7,000l., for which he would pay interest at 5 per cent. per annum, and also com- breach of the

that the de

fendant was

liable for a

contract.

1862.

THOMPSON

v.

CLARK.

mission of 5 per cent., and all legal charges. On this, one Graham, Thompson's partner, went to the plaintiff about the matter, and the plaintiff told him he had purchased a ship, and had paid 15,000l. on account, and wanted only 7,000l. to complete the purchase; Graham, ou the part of Thompson, agreed; but demanded a higher rate of interest. On the 18th November a memorandum was signed by the defendant in these terms:

"I hereby agree to accept from Mr. Thompson a loan of 7,000l. on the security of my ship, &c., and to give a legal mortgage on the ship, paying interest at the rate of 8 per cent., and 5 per cent. commission."

On this, Graham & Thompson negotiated a loan on the above terms with certain persons known to them. The defendant went with Graham to get a copy of the ship's registry, on which the Atlantic Steam Company appeared as owners, and in the copy he erased their name and inserted his own. The registry was to be altered into his name only on his completion of the purchase. The copy was handed to the intended lender, who said to the defendant, "Is this a first mortgage?" to which he answered, "Yes." (The defendant, however, alleged that he had understood the question to be, "Is there a first mortgage?") When the time came to complete the transaction the question was repeated, and then the defendant said it was a second mortgage. On which the transaction was abandoned, the lender refusing to complete. In point of fact, there was a mortgage on the ship to the Atlantic Company for 15,000l. by the former owner, not by the defendant, who, as above mentioned, was not yet the legal owner.

H. James submitted that there was nothing for the jury, and that the written contract meant merely that the defendant would, when he had the legal title, execute a mortgage of the ship; that it did not, in the case of a ship, mean a first mortgage, and that parol evidence was not admissible to show that it did.