1876 KEAY v. FENWICK, The learned judge put the following questions to the jury,1. Did the defendants authorize their co-owner Dale to sell the ship on the terms that the owners should pay a commission? 2. Did Dale sell the ship through the plaintiffs, and agree with them that the owners should pay them a commission? and did the defendants ratify the sale of the ship on those terms? 3. Did the plaintiffs look exclusively to Dale for the payment of their commission? 4. Did the defendants Fenwick and Stanley or either of them alter their position by settling their accounts with Dale before notice of the plaintiffs' claim, so as to make it unjust for the plaintiffs to require the defendants to pay them? 5. Was the defendant Armstrong a part-owner or a mortgagee only? The first and second of these questions were answered by the jury in the affirmative, and the third and fourth in the negative: and in answer to the fifth they found that Armstrong was a part owner. The learned judge thereupon directed a verdict to be entered for the plaintiffs. Benjamin, Q.C., on behalf of the defendant Fenwick, at the last Michaelmas sittings, obtained a rule nisi to set aside the verdict as against him, and to enter a nonsuit, or a verdict for him or all the defendants, or for a new trial, on the following grounds,1. that there was no evidence of the contract sued upon, or ratification thereof as between the plaintiffs and defendants,2. that the verdict was against the weight of evidence on some or all of the questions left to the jury,-3. that the judge ought to have directed the jury that the plaintiffs, by receiving Dale's acceptance for the amount claimed by the plaintiffs after knowledge of the names of the principals and without notice to them, had elected to trust the agent, and could not afterwards hold liable principals then disclosed,-4. that the judge ought to have ruled that there was no evidence of a joint contract,-5. that the plaintiffs, by allowing the defendants to give credit to Dale in account for commissions as if paid by him, and neglecting to notify the defendants of their claim for commission till after Dale's bank ruptcy, had so altered the position of the defendants as to disentitle the plaintiffs to recover in this action. Herschell, Q.C., obtained a similar rule on behalf of the defendant Stanley. Wilberforce also obtained a rule on behalf of the defendant Armstrong, with an additional ground, viz. that Armstrong, being a mortgagee only, could not in any event be liable to the plaintiffs for commission on the sale of the ship. Feb. 4. Butt, Q.C., Cohen, Q.C., and Witt, shewed cause. They contended that, although Dale might have had no original authority to sell the ship, yet the defendants, who were all partowners, were willing that she should be sold, ratified the sale as soon as they had notice of it, executed the power of attorney giving Keay & Donald authority to execute the transfer to the Turkish Government, and received from Dale their respective shares of the purchase-money; that the defendants were all jointly liable to pay the commission which they must have known would be payable to some one, and they settled their separate accounts with Dale upon the footing that it had actually been paid; and that the drawing of the bill upon Dale was no evidence of an election on the part of Keay & Donald to deal with Dale alone in the matter, it being a common and usual course of business to settle the ship's accounts with the ship's husband or managing-owner. [The following authorities were referred to,-Paterson v. Gandasequi (1); Bottomley v. Nuttall (2); Whitwell v. Perrin (3); Hunter v. Parker (4); Calder v. Dobell (5); Armstrong v. Stokes (6); Heald v. Kenworthy. (7)] Benjamin, Q.C., and F. M. White, for Fenwick, Herschell, Q.C., and Shield, for Stanley, and Day, Q.C., and Wilberforce, for Armstrong, in support of the rules, submitted that there was no evidence of prior authority in Dale to sell the ship; that, though the signing the power of attorney might amount to a ratification of the sale of the ship, it could not amount to a ratification of a contract to pay commission of which they knew nothing, so as to make each (1) 15 East. 65. (2) 5 C. B. (N.S.) 122; 28 L. J. (C.P.) 110. (3) 4 C. B. (N.S.) 412. (4) 7 M. & W. 322. (5) Law Rep. 6 C. P. 486. (6) Law Rep. 7 Q. B. 598. 1876 KEAY V. FENWICK. (7) 10 Ex. 739, at p. 745; 21 L. J. (Ex.) 76. 1876 KEAY v. FENWICK. co-owner liable for the whole; that the authority to sell (if any) was Cur. adv. vult. Feb. 28. The judgment of the Court (Lord Coleridge, C.J., and Denman and Lindley, JJ.,) was delivered by LINDLEY, J. This was an action in which the plaintiffs, who were ship-brokers at Constantinople, sought to recover from the defendants, as owners of the steam-ship Westminster, the sum of 5117. 188. 3d., being the balance of the plaintiffs' account against the owners of the ship. The main point in dispute was whether the plaintiffs were entitled to be paid by the defendants a sum claimed by the plaintiffs as commission on the sale of the ship to the Turkish Government. The ship was in fact, on the instructions of Dale, sold by the plaintiffs to the Turkish Government for 19,000l. Dale was one of the owners of the ship,-the managing owner. The price was paid by means of a bill; and this bill was sent to Dale by the plaintiffs, they at the time knowing nothing of the defendants. Dale divided this sum, less certain deductions for commission and other matters, amongst the defendants and himself. Afterwards, and after the plaintiffs had ascertained who the owners were, the plaintiffs drew a bill on Dale for the balance due to them, including their commission; and he accepted the bill. He subsequently became bankrupt, and the plaintiffs proved against his estate for the amount of the bill, and received a dividend on it. The sum sought to be recovered in this action was the amount of the bill, less the dividend. The defendants contended that Dale had no authority to sell the ship; that the defendants never ratified the sale; that the plaintiffs had looked to Dale alone for payment, and had so dealt with him as to have discharged the defendants, even if they had ever been liable to the plaintiffs. One of the defendants, Armstrong, further contended that he was only a mortgagee of the ship, and not a part-owner. The jury found, in answer to questions left to them by the judge at the trial, that the defendants did authorize their coowner, Dale, to sell the ship on the terms that the owners should pay a commission; that he did sell her (through the plaintiffs) on those terms; that the defendants ratified such sale; that the plaintiffs did not look exclusively to Dale for payment; that the defendants had not altered their position by settling their accounts with Dale before notice of the plaintiffs' claim, so as to make it unjust for the plaintiffs to require the defendants to pay them; and that Armstrong was an owner, and not a mortgagee. On these findings the plaintiffs had a verdict. Rules were obtained to set aside this verdict as against the defendant Fenwick, and to enter a nonsuit or a verdict for him or all the defendants, or for a new trial, on the following grounds,-1. That there was no evidence of the contract sued upon, or ratification thereof as between the plaintiffs and defendants,-2. That the verdict was against the weight of evidence on some or all of the questions left to the jury,—3. That the judge ought to have directed the jury that the plaintiffs, by receiving Dale's acceptance for the amount claimed by the plaintiffs after knowledge of the names of the principals and without notice to them, had elected to trust the agent, and could not afterwards hold liable principals then disclosed,-4. That the judge ought to have held that there was no evidence of a joint contract,-5. That the plaintiffs, by allowing the defendants to give credit to Dale in account of commissions as 1876 KEAY v. FENWICK. if paid by him, and neglecting to notify the defendants of their claim for commissions till after Dale's bankruptcy, had so altered the position of the defendants as to disentitle the plaintiffs to recover in this action. Similar rules were obtained on behalf of Stanley and Armstrong; the latter stating an additional ground, viz.,-6. That the defendant Armstrong, being a mortgagee: only, was not liable to the plaintiffs for commission on the sale of the ship. . The jury were, perhaps, hardly justified in finding that an authority to sell was given by the defendants to Dale before the ship was sold: but, in all other respects, we think there was ample evidence to support their findings. The evidence of ratification consists mainly of the power of attorney signed by all the defendants, and dated the 19th of February, 1874, and of the division of the money realized by the sale. The power of attorney was as follows:[The learned judge read it.] It was contended first of all that this was not a joint authority, but only an authority from each defendant to sell his own shares, and that the authority could not in point of law amount to anything else. But, although it is true that each of several co-owners of a thing can only sell or authorize the sale of his own interest in that thing, yet it is also true that all the co-owners of a thing may combine and sell or authorize the sale of that whole thing: and this is really what the defendants did. The authority they conferred was one authority given by them all collectively to sell the whole ship, and not several authorities given by them separately to sell their respective shares in her. There is no legal principle or rule which precludes several coowners from jointly retaining a solicitor to bring or defend an action relating to their common property: nor is there any reason why several co-owners of property may not act jointly in respect of it. Whether they have done so or not in any particular case, must depend on the circumstances of that case. In this case the jury found that the defendants had so acted; and we think that the jury were quite right in coming to this conclusion. • It was contended, secondly, that, even if the defendants did ratify the sale of the ship, they did not ratify her sale on commission. But the defendants knew that Dale was in England, and |