Auctioneer's authority from the bidder. Subd. 6.-Minturn vs. Main, 7 N. Y., p. 227. 2363. An auctioneer has authority from a bidder at the auction, as well as from the seller, to bind both by a memorandum of the contract, as prescribed in the Title on Sale. NOTE.-See Sec. 1798. ARTICLE II. FACTORS. Factor, what. Actual authority of factor. SECTION 2367. Factor, what. 2368. Actual authority of factor. 2369. Ostensible authority. 2367. A factor is an agent, as defined by Section 2026. 2368. In addition to the authority of agents in general, a factor has actual authority from his principal, unless specially restricted: 1. To insure property consigned to him uninsured; 2. To sell, on credit, anything intrusted to him for sale, except such things as it is contrary to usage to sell on credit; but not to pledge, mortgage, or barter the same; and, 3. To delegate his authority to his partner or servant, but not to any person in an independent employ ment. NOTE.-Subd. 1.-Brisban vs. Boyd, 4 Paige, p. 17. Subd. 2.-"To sell on credit anything intrusted to him for sale" (Van Allen vs. Vanderpool, 6 Johns., p. 72; Laussatt vs. Lippincott, 6 Serg. & R., p. 386), "except such things as it is contrary to usage to sell on credit" (see Story on Agency, Sec. 110; Delafield vs. Illinois, 26 Wend., p. 192; 2 Hill, p. 159); "but not to pledge" (Buckley vs. Packard, 20 Johns., p. 421; Rodriguez vs. Heffernan, 5 Johns. Ch., p. 429), nor mortgage, nor barter it."-Guerriero vs. Peile, 3 B. & Ald., p. 616. 66 Subd. 3.-The delegation of his power by a factor to his partner or servant seems to be reasonable, and it is unquestionably the universal custom. But such delegation must not be to any person in an independent employment.-Moffat vs. Wood, 5 Seld., notes, p. 14. authority. 2369. A factor has ostensible authority to deal Ostensible with the property of his principal as his own, in transactions with persons not having notice of the actual ownership. ARTICLE III. SHIPMASTERS AND PILOTS. SECTION 2373. Authority of shipmaster on behalf of shipowner. 2374. Authority to borrow. 2375. Authority on behalf of owners of cargo. 2376. Power to make contracts. 2377. Power to hypothecate. 2378. Master's power to sell ship. 2379. Master's power to sell cargo. 2380. Authority to ransom ship. 2381. Abandonment terminates master's power. 2382. Personal liability for contracts concerning the ship. 2383. Liability for acts of persons employed upon the ship. 2384. Responsibility for negligence of pilot. 2373. The master of a ship is a general agent for Authority its owner in all matters concerning the same. shipmaster on behalf of shipowner. to borrow. 2374. The master of a ship has authority to bor- Authority row money on the credit of its owner, if it is necessary to enable him to complete the voyage, and if neither the owner nor his proper agent for such matters can be consulted without injurious delay. NOTE.-The Fortitude, 3 Sumn., p. 228; Weston vs. Wright, 7 M. & W., p. 396; Arthur vs. Barton, 6 id., p. 138; see Beldon vs. Campbell, 6 Exch., p. 886. 2375. The master of a ship, during a voyage, is a general agent for each of the owners of the cargo, and has authority to do whatever they might do for the Authority of owners on behalf of cargo. Power to make contracts. Power to hypothe eate. Mastor's power to sell ship. preservation of their respective interests, except to sell or hypothecate the same. NOTE.-Nelson vs. Belmont, 21 N. Y., p. 36; 5 Duer, p. 310. 2376. The master of a ship may procure all its necessary repairs and supplies, may engage cargo and passengers for carriage, and, in a foreign port, may enter into a charter party; and his contracts for these purposes bind the owner to the full amount of the value of the ship and freightage. NOTE.-"May procure all its necessary repairs and supplies."-3 Kent Com., Sec. 161; see Provost vs. Patchin, 9 N. Y., p. 235. His authority is not confined to purchasing at the port where the vessel lies.-Kenzel vs. Kirk, 37 Barb., p. 113; 21 How. Pr., p. 184. "He may in a foreign port enter into a charter party.”—3 Kent Com., Sec. 162. 2377. The master of a ship may hypothecate the ship, freightage, and cargo in the cases prescribed by the Chapters on Bottomry and Respondentia, and in no others. NOTE.-There seems to be no precedent or usage which would justify any other form of hypothecation by a master. 2378. When a ship, whether foreign or domestic, is seriously injured, or the voyage is otherwise broken up, beyond the possibility of pursuing it, the master, in case of necessity, may sell the ship without instructions from the owners, unless by the earliest use of ordinary means of communication he can inform the owners, and await their instructions. NOTE." When a ship, whether foreign or domestic."-Scull vs. Briddle, 2 Wash. C. C., p. 150; Brig Sarah Ann, 13 Pet., p. 387, affirming S. S. 2 Sumn, p. 206. "In case of necessity, may sell the ship," etc.Chambers vs. Grantzon, 7 Bosw., p. 414; Pierce vs. Ocean Ins. Co., 18 Pick., p. 83; Patapsco Ins. Co. vs. Southgate, 5 Peters, p. 604; Brig Sarah Ann, 13 id., p. 387; Pope vs. Nickerson, 3 Story, p. 465; Cannan vs. Meaburn, 1 Bing., p. 243; Idle vs. Royal Exch. Ass. Co., 8 Taunt., p. 755; Somes vs. Sugrue, 4 C. & P., power to 2379. The master of a ship may sell the cargo, if Master's the voyage is broken up beyond the possibility of sell cargo. pursuing it, and no other ship can be obtained to carry it to its destination, and the sale is otherwise absolutely necessary. Co., 5 B. & Ald., p. 617; NOTE.-Searle vs. Scovell, 4 Johns. Ch., p. 218; to ransom ship. 2380. The master of a ship, in case of its capture, Authority may engage to pay a ransom for it, in money or in part of the cargo, and his engagement will bind the ship, freightage, and cargo. NOTE.-3 Kent Comm., Secs. 172, 173; see The 2381. The power of the master of a ship to bind Abandonits owner, or the owners of the cargo, ceases upon the terminates abandonment of the ship and freightage to insurers. NOTE.-3 Kent Comm., p. 331. ment master's power. liability for contracts the ship. concerning 2382. Unless otherwise expressly agreed, or un- Personal less the contracting parties give exclusive credit to the owner, the master of a ship is personally liable upon his contracts relative thereto, even when the owner is also liable. NOTE.-Story Agency, Secs. 294, 296. 2383. The master of a ship is liable to third persons for the acts or negligence of persons employed in 12-vol. ii. Responsi- of pilot. its navigation, whether appointed by him or not, to the same extent as the owner of the ship. NOTE.-Dennison vs. Seymour, 9 Wend., p. 8. 2384. The owner or master of a ship is not responnegligence sible for the negligence of a pilot whom he is bound by law to employ; but if he is allowed an option between pilots, some of whom are competent, or is required only to pay compensation to a pilot, whether he employs him or not, he is so responsible to third What manager What powers he has not. NOTE.-Story Agency, Sec. 456, note. ARTICLE IV. SHIPS' MANAGERS. SECTION 2388. What powers manager has. 2389. What powers he has not. 2388. A ship's manager has power to make contracts requisite for the performance of his duties as such; to enter into charter parties, or make contracts for carriage; and to settle for freightage and adjust averages. 2389. Without special authority a ship's manager cannot borrow money or give up the lien for freightage, or purchase a cargo, or bind the owners of the ship to an insurance. TITLE X. PARTNERSHIP. CHAPTER I. Partnership in General. II. General Partnership. III. Special Partnership. IV. Mining Partnership. |