Marriott v The Anchor Reversionary Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1861 |
| Date | 25 November 1861 |
| Court | High Court of Chancery |
English Reports Citation: 66 E.R. 191
HIGH COURT OF CHANCERY
Affirmed, 3 De G. F. & J. 177; 45 E. R. 846 (with note).
[457] marriott v. the anchor eeversionary company (limited). Nov. 20, 21, 22, 1860. (Affirmed, 3 De G. F. & 3. 177 ; 45 E. E. 846 (with note).] The mortgagees of a steamship, who, against the consent of the mortgagor, employed her in trade, whereby they lost large sums, and afterwards sold her by private contract, without notice to the mortgagor, for less than the amount of the mortgage debt, charged with her value on taking possession. Whether a mortgagee of a ship is bound to sell her, or whether'he may use her as a prudent owner would do-quaere. This bill was filed by W. A. Marriott against the company and its trustees, and it prayed as follows :- " 1. That it may be declared that the Defendants, the Anchor Reversionary Company, ought to be charged with the value of the said steamship at the time of, or at a reasonable time after, their taking possession thereof. " 2. That an account may be taken of what, if anything, is due to the Defendants for principal and interest in respect of the said mortgage; but, in taking such account, that the Defendants may not be allowed to charge the Plaintiff with any losses consequent on the trading by them with the said vessel. The Plaintiff hereby offering to pay to the Defendants what, if anything, shall be found due from the Plaintiff on the said security; but if, on taking such account, it shall appear that a balance is due to the Plaintiff that the Defendants may be decreed to pay such balance to the Plaintiff', with interest at 5 per cent., from the time when the same was due to the day of payment." The bill also prayed for an injunction ta restrain execution on a judgment which the Defendants had obtained as a security for what should be due, and also for the usual accounts and inquiries. The bill alleged that in July 1858 the Plaintiff applied to the Defendants for the loan of 1000, in order to do certain repairs to the "Orwell" steamship. The said company consented to grant such a loan, and on the 24th day of July (1) 1 De G. & S. 12. See G-lynn-v. Caulfield, 3 M. & G. 463; Thompson v. Folk, 1 Drew. 21; Manser v. Dix, 1 K. & J. 451. 192 MARRIOTT V. ANCHOR BE VERSION ABY CO. (LTD.) 2 GIFT. 458. 1858 advanced the said Plaintiff the sum of 1000 on his executing to the company the usual shipping mortgage comprised in a printed form, and [458] also a certain indenture which provided for the repayment of the said 1000 by instalments, and which the company had ready prepared for that purpose, together with the mortgage of the ship. The Plaintiff effected an insurance for a year in 1000 on his own life, and deposited with the company a lease of a house in Fleet Street, but these other securities were not mentioned in the bill. The loan was to be repaid in two years, by instalments of 150 each, and was in the meanwhile to bear interest at 10 percent. On the 28th of October 1858 the Plaintiff paid the first instalment of 150, but, being unable to pay the second in due time, the company commenced an action against him on the covenant in the deed ; but the Plaintiff, on the 30th of May 1859, having paid a further sum of 100, the action was ultimately settled by the Plaintiff consenting to give judgment for 1200, which was to stand as a security for what, on investigation, should be found due, and to pay the company's costs between solicitor and client. . The Plaintiff expended the 1000 with other sums in effecting the necessary repairs, and supplied the vessel with a new and powerful boiler, which alone cost nearly 800. He subsequently employed the vessel in conveying goods and passengers between London and Ipswich until October 1858, and again during the months of June and July 1859, but, finding such traific unprofitable, he determined to discontinue the running of the vessel and to sell the ship, and with a view to such sale withdrew the ship from the station and laid her up at Blackwall, where she was painted by the captain. The Plaintiff thereupon opened a negotiation with the Waterman Company, who had boats on the station, for the sale of the vessel to them. On the 20th or 22d of July, for there was some doubt about the exact day, the Plaintiff being again in arrear, the Defendant took possession of the vessel, [459] and, acting on the advice of the captain and Mr. Home, the auctioneer, immediately determined to resume the traffic between London and Ipswich, which the Plaintiff had finally abandoned, and commenced running her between London and Ipswich. The company advertised the ship for sale for the 3d of August 1859. The particulars of sale stated that the said steamship was fitted with " two steam-boilers, one new last July " (1858), whereas the vessel was, in fact, fitted with one large and powerful boiler, new in July 1858, instead of two smaller ones of which one only was new. The fourth condition provided "that the bill of sale and transfer of the vessel shall be prepared by and at the expense of the purchaser; and, on the completion of the purchase, the purchaser will become entitled to the engagement that has been entered into with the captain, engineer and crew of the vessel to carry passengers between London Bridge Wharf, Ipswich and, Walton-on-the-Naze, up to the 5th of October. The purchaser shall enter into an undertaking with the vendors to fulfil the engagements and to discharge the obligation created by the issue of return tickets." The Plaintiff, on hearing of the intended sale, wrote to the Defendants, stating that the boiler was not included in the mortgage. He also strongly objected to the particulars of sale as inaccurate. In consequence of this remonstrance the sale was postponed till the 12th of August, and in the meantime a correspondence took place between the respective solicitors; the Plaintiff's solicitor requested to have copies of the deeds which the Plaintiff had executed, and of which he had no copies, which the Defendant's solicitor refused to furnish, alleging that the company stood on their right as mortgagees not to produce the deeds until paid off. On the other hand, the Defendant's solicitor sent the particulars and conditions of sale to the solicitor of the Plaintiff, with a request to have [460] any inaccuracy set right. The Plaintiff's solicitor, in reply, refused to interfere in the matter, and left the company to act on their own responsibility. Before the sale took place the Plaintiff himself wrote to the Defendant's solicitor, stating he had no objection to their selling the boiler if they left a sufficient margin. On the 12th of August the vessel was offered for sale, having been running the whole time, and, no offer having been made, was bought in by the vendors for 950. It was in evidence that a person in the saleroom inquired whether'she could not be 2-.GIEE.ffil. MAEBIOTT V.sANOHOE BEVERSIONARY CO. (LTD.) 193 sold without engagements^ but was told by the auctioneer she must run until the 5th of October. He made ho bidding. It was also sworn by the auctioneer that he corrected the mistake in the particulars'of sale as to the boiler. On the 13th of August the Plaintiff addressed to the company the following letter:- "August 13th, 1859.-Dear Sir,-I am communicating-with some parties at a distant part of England, who I believe want a similar class of vessel to the 'Orwell' for the station. It would be well if (as you did not sell yesterday) she was to await the result of this communication. As a matter of friendly advice, I should still say to you-Don't run her, but put her into dock (Victoria is the cheapest), and discharge all hands but one to take care of her. The best man for that would be Leonard . Daldry, who was a seaman on board -her when you took her. He can be relied on to take charge of everything. As to any agreement existing in favour of captain and crew up to the 3d of October, that is all nonsense; there is none to my knowledge or with my sanction, and therefore none that can hold good a moment., They may or may not have agreed among themselves to certain things, but they are or were all-from captain...
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