MARZIOU et al v. PIOCHE et al., 8 Cal. 522

Burnett, J., after stating the facts, delivered the opinion of the.,Court—Terry, C. J., concurring. It is insisted by the learned counsel for the defendant, that the Court erred in giving the first instruction, as it was a mere abstract proposition of law, and as such, though true, had no application to the case, and was, therefore, calculated to mislead the jury; and more especially so, when the Court refused to give the "explanatory instruction. In order to authorize the captain of a vessel to pledge, or sell, the property of his owners for necessaries, certain facts must exist: 1.

The vessel must be in a foreign port. 2. The voyage must be unfinished. 3. The pledge, or sale, must be indispensable to enable the ship to complete the voyage. 4. These facts must be charged in the complaint and proved at the trial. Gratitudine, 3 Robinson, 210,306; United States Ins. C. v. Scott, 1 Johns. R., 111; Bucker v. Conyngham, 2 Peters, Ad. R., 300; The Fortitude, 3 Mason, 228.

There was certainly no evidence to show that the money was loaned in order to enable the vessel to complete her voyage; but the evidence was conclusive that it was loaned to enable her to perform a new "voyage without the instructions, or consent, of the owners, at the time. But we think this error of the Court could do the defendants no harm, for the reasons hereafter stated. Turner v. MeIlhany, Thomas & Co., Oct., 1857. But it is insisted by the learned counsel for plaintiffs, that the acts of Captain Devaulx were subsequently ratified by Marzaud & Co., after full knowledge.

Most of the testimony consists in the correspondence between Marziou & Co., and Marzaud & Co., and between Consul Dillon and Marzaud & Co. After a careful examination of all the testimony, it seems clear that Marzaud & Co. were fully informed of the debts created by Captain Devaulx, and ratified his acts in creating these debts. But there is no evidence to show that Marzaud & Co. were ever fully informed of the contents of the assignment made by the captain to the plaintiffs. On the contrary, the evidence, taken as a whole, shows clearly that they were not so informed.

Consul Dillon, in his letter to Marzaud & Co., under date of January 23, 1851, says: “ As to the funds still in the hands of Messrs. Pioche, Bayer-q,ue & Co., they will be transmitted, to you directly, excepting the first payment, which must be made about this time, the amount of which has been hypothecated previous to the receipt of your letters, on account of the two-fold expedition of the Java and Chateaubriand.” This is a very clear statement that the first payment wa's hypothecated, and that the other payments were not. Eo one reading this extract could ever come to any other conclusion.

And there is nothing in the letters from the plaintiffs to show that they ever gave Marzaud & Co. any correct notice that the last instalment had been.assigned to them by Devaulx. But the tenor of the correspondence, on the part of the plaintiffs, would lead any person to a different conclusion. The act of creating the debt, and the act of making the pledge, are very different things, and a principal, after full information, might l\,ave the best reasons for ratifying the first, and for refusing to ratify the second.

And when the plaintiffs proved, as they did, that Marzaud & Co. ratified the acts of their agent in creating the debts, they did not show that the acts of this agent in pledging the property of his principals, had been also ratified to its full extent. But the learned counsel for the plaintiffs insist that Marzaud & Co. themselves pledged this debt to the plaintiffs to secure them for all the advances made, including this four thousand dollars, as well as subsequent loans.

The plaintiffs, under date of May 14th and 31st, 1851, requested Marzaud & Co. to send them a power of attorney to collect the last dividends due by P. B. & Co. The power was sent by Marzaud & Co., and in their answer, dated the thirteenth of August, 1851, they say: ‘‘ You will have taken care, gentlemen, for every thing necessary to that effect, by finding the surety for your advances on the funds due to us by Messrs.

Pioche, Bayerque & Co., which will be easy for you to collect without impediment, by virtue of' the power which we send you; praying that when you will be duly secured, you will forward our surplus in good value.” This language, taken in connection with that found in the letters of plaintiffs, and also in the other letters of Marzaud & Co., shows clearly that it was the intention of Marzaud & Co. to give the plaintiffs a power coupled with an interest, and, therefore, irrevocable. “ But, where an authority, or power, is . coupled with an interest, or when it is given for a valuable consideration, or when it is a part of a security, then, unless there is an express stipulation, that it shall be revocable, it' is, from its own nature and character, in contemplation of law, irrevocable, whether it is expressed to be so upon the face of the instrument conferring the authority or not.” Story on Agency, § 477.

Where an agent, for the collection of debts, or the sale of property, advances money to his principal before he collects the debt, or sells.the property, it must be presumed, from the nature and character of the transactions, that the parties intend the agent shall have a lien for his advances, unless there is “ an express stipulation” to the contrary. It makes no difference whether the advances be made before or after the power is given, so they are approved by the principal.

And when the principal, as in this case, expressly gives the power, for the very purpose of providing the means to return the advances made by the agent, there would seem to be no doubt as to the irrevocable character of the power. 5 Cal. Rep., 469, Postin v. Rassotte. If these views be correct, the plaintiff had an irrevocable authority to -institute this suit; and this being so, the question arises under the proofs in this case, as to what amount were they entitled to recover.

Had the plaintiffs the right, against the objection of the defendants and Marzaud & Co., to recover the full amount of the debt due from P. B. & Co., at the time this suit was commenced ? or, had they the right to recover only so much as would be necessary, to pay the d'ebt due from Marzaud & Co. to them ?

It was shown by the defendants, that they paid Marzaud & Co. the sum of seven thousand francs, in December, 1852, upon the last instalment; and that Marzaud & Co., in January, 1853, formally revoked the power given to plaintiffs, in August, 1851, and positively instructed defendants to pay to Marzaud & Co. alone. The creditor has not the right to assign the debt in parcels, and thus, by splitting up the cause of action, subject his debtor to the costs and expenses of more suits than the parties originally contemplated. But when the debtor himself does not object, no other party can object for him.

The object of the assignment in this case, was to secure the plaintiffs, and that end is fully attained, if they are permitted to recover all that may be dué to them. Although the power be irrevocable, it is only so to the extent of their interest, and the defendant had a right to pay to Marzaud & Co. all beyond the sum necessary to secure the plaintiffs. And Marzaud & Co. had the right to revoke the power, as to the excess beyond the claim of plaintiffs.

And as the defendants have been notified of the revocation, and make no objection to it, but set it up in their answer, it is their duty, as well as their right, to see that the plaintiffs only recover judgment against them for the true amount due from Marzaud & Co. In this case, the plaintiffs had judgment for the full amount of the last instalment, with interest, when it is almost certain that their debt against Marzaud & Co. did not amount to so much, after properly appropriating the various payments made at different times.

The loan of four thousand dollars drew five per cent, per month by express written agreement, afterwards fully ratified by Marzaud & Co. But there was no express written agreement as to the rate of interest upon the other advances made by plaintiffs, and they can only recover the legal interest of ten per cent, per- annum. With the view we have taken of this case, it will be necessary to remand the case, for the purpose of taking an account, so as to ascertain the amount for which the plaintiffs are entitled to take judgment. In taking the account, the payment made by Capt.

Devaulx, December 31st, 1850, of two thousand and twenty-five dollars and sixty-six cents, should go to the credit of the loan of four thousand dollars; also, the proceeds of the cargo of coal, after deducting the actual costs of the voyage to and from Sydney, the necessary expense of keeping the coal in the harbor, and commissions on sales. The pledge of the cargo of coal to plaintiffs, to secure the loan of four thousand dollars, was ratified by Marzaud & Co., as appears from their letter to Dillon, December 28th, 1850. There remains but one point undisposed of, which it is necessary to notice.

The appeal in this case, was taken, only from the judgment, and not from the judgment and the order overruling the motion for a new trial. It is insisted by the plaintiffs’ counsel, that this Court will not review the facts of the case, unless the appeal be from the order refusing the new trial. This is well settled.

But in this case, it is stipulated by the counsel of both parties, that as there was, in fact, a motion for a new trial made and overruled, and the appeal only taken from the judgment, this Court may consider the case as here upon appeal, both from the judgment and order, if this Court shall determine that defendants could appeal from the order, after having appealed from the judgment alone. There can bo no doubt as to the right of a party to appeal, either from the judgment or the order, or from both, at the same time. The time limited, by the statute as to one, is different from that as to the other.

But can a party take distinct and independent appeals? We think he may do so, provided he bring them up for determination at the same time. Taking distinct appeals may affect the question of costs. But, subject to this condition, we can see no error in permitting a party- to take distinct appeals in the same case, provided no delay is thereby occasioned. As the point is a new one, we will not turn the appellants out of Court, but will tax them with the costs of this appeal. The stipulation was entered into at the hearing of this case.

Had the appellants taken their appeal from the order in time for the hearing, the judgment, as to costs, would have been different. The cause is remanded to the District Court to take the account, and modify its judgment in accordance with this opinion.