Brigham v. Clark

delivered the opinion of the Court. We have considered the several exceptions to the instructions to the jury, although some of them have not been much relied oh in the argument.

I. The first exception, as to the supposed illegality of the service of the writ, has been very properly waived by the defendant’s counsel, for it is not supported either by the law, or the evidence. The facts assumed were not proved, nor could proof of them be admitted under the general issue. All objections to the process, and the service of the writ, must be taken advantage of by plea in abatement, or by motion to dismiss the suit when the defect appears of record. By pleading to the action the defendant waived all such ob jections.

2. Not much more can be said in support of the objection *51to the form of the action, namely, that the Flints should have been joined, and that several actions cannot be maintained. If the plaintiff had any interest in the brig sold by the defendant, he was tenant in common with the Flints, and whether this was a legal or equitable interest is immaterial in respect to this objection, as the defendant was notified that the plaintiff was the owner of one half of the brig, and he was requested to keep a separate account of his share of the earnings and disbursements. With this notice that the interests of the olaintiff and the Flints were several, the defendant was bound to account with them severally, according to their respective interests, for the proceeds of the sale of the brig. A joint action might have been brought for the earnings, if there had neen no agreement nor understanding that the accounts should be kept separately. But the jury have found that there was such an agreement or understanding, and that in fact the defendant kept his accounts of the earnings and disbursements separately, according to his instructions from the Flints.

3. We think also that the objection as to the sufficiency of the demand on the defendant to account is unfounded. The instruction to the jury on this point was perfectly correct. If the defendant denied his responsibility to account with the plaintiff, or his assignee, it is immaterial where the demand was made. After such a refusal no further demand was necessary, for the law never compels a party to do an act wholly useless.

4. The fourth objection, which was overruled at the trial, is, that if the plaintiff had any interest in the brig Hermosa, it was a legal title, and if so, then it passed by the assignment of the 6th of February 1834, from the plaintiff to Freeman and Edes, and consequently that no action can be maintained in the name of the plaintiff for any earnings after that time, or for the proceeds of sale. Upon this point the jury were instructed, that by the documents in evidence neither the plaintiff nor the Flints had any legal title in the vessel, but only an equitable interest, secured by the power of attorney in the case ; and that, notwithstanding that power, and the transfer of it, the legal property remained in the Spanish owner. These instructions appear to be fully supported by the documents. The Spanish owner made no sale, tut only *52gave one Gulliver a power of attorney to sell the vessel ana to appropriate the proceeds of sale to his own use. Gulliver made a similar power to Jesse D. Robinson for the benefit of the late firm of Thayer & Hurd, and if the plaintiff and the Flints had any legal title to the vessel, they must derive it from Robinson or from Thayer. The only claim they have, according to the documentary evidence, is under their relinquishment, and that is only a release of their respective interests, and as they had no legal interest in the vessel, none consequently could pass. Where a conveyance is made .by virtue of a power, it must be made in the name oí the princi pal or owner, but these releases from Robinson and Thayei to the Flints are neither made in the name of the Spanish owner, nor do they release or convey bis interest or title.

But if the legal title had been conveyed to the Flints, there is no evidence that they conveyed a share to the plaintiff, and they might well own a moiety in their own right, and the ther moiety in trust for the plaintiff.

It has been argued that a bill of sale was not necessary to transfer the property in the vessel, and that a sale by parol would be sufficient. But there was no evidence of any such sale, and the instructions to the jury on this point were limited to the construction of the documentary evidence.

It is very clear, therefore, that the instructions thus given were correct, and that there was no evidence in the case to show that the legal title was ever transferred from the Spanish owner to the plaintiff and the Flints, or to either of them.

But it has been argued, that if the plaintiff had an equitable title to the moiety of the vessel, as he undoubtedly had, that passed to his assignees, and that the action for the earnings of the vessel after the assignment, and for the proceeds of the sale, should have been brought in the name of the assignees.

There would be great weight in this argument, if the defendant had assented to the assignment, and had agreed to account with the assignees. But there was no evidence of any such assent and agreement. On the contrary, when the de fendant had notice of the failure of the Flints, he claimed the right to account with them for the whole of the earnings and proceeds of the vessel. There is therefore no privity of con *53tract between the defendant and the plaintiff’s assignees, and no action could be maintained in their names. Their only right to maintain this action in the name of the plaintiff, is an equitable right in a chose in action.

As to the remaining objections, namely, that the plaintiff had relinquished his right in the vessel, and that the defendant had a right to deduct the advances made by the Flints, we think the answers given at the trial, as they appear in "the report, are perfectly satisfactory.

Judgment bn the verdict.