Etheridge v. Thompson, 29 N.C. 127, 7 Ired. 127 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 127, 7 Ired. 127

JOHN B. ETHERIDGE vs. SAMUEL W. THOMPSON.

Where wrecked goods were placed under care of the wreck-master by the-Captain of the vessel, to be disposed of according to law, and the owner, afterwards and before a sale, promised the wreck-master that, if he would deliver up the goods to him, he would pay him his commissions; Held, that there was a sufficient consideration for the promise.

Appeal from the Superior Court of Law of Currituck County, at the Fall Term, 1846, his Honor Judge Peart son presiding.

This was an action of assumpsit. The plaintiff gave in evidence, that he was a commissioner of wrecks, for district No. 4, for the County of Currituck: That, thereupon, as commissioner, he required of the captain to be allowed to take in charge the goods wrecked and stranded. The captain refused, but on the next day consented and delivered over to the plaintiff all the said goods: that afterwards, the plaintiff, as commissioner, exposed to sale part of the goods to the amount of about $900, and the defendant, as owner of the goods, requested the plaintiff not to sell the balance of the goods, but to deliver them over to him, promising, that if he would do so, he would pay him his commissions. Accordingly, the plaintiff delivered to him the balance of the goods aforesaid ; and afterwards, the defendant, being requested to pay his commissions according to his promise aforesaid, refused to do so. At the time of his promise, a valuation was made of the goods by consent, and fixed at @900. It was further in evidence, that the commissions, due the plaintiff for the sale aforesaid, were paid to the plaintiff at the time of said sale. The defendant’s counsel insisted that the plaintiff at the time of bringing his action, as commissioner, was only entitled to commissions upon goods wrecked and actually sold by him. He also insisted that the captain, owner, consignee or agent had the right to re-ship wrecked goods at any time before actual sale ; that the promise was a nudum pactum, unsupported by any consideration.

The Court charged, that if the jury were satisfied that the plaintiff, as commissioner of wrecks, had taken the goods into his charge and custody that he sold part and was about to sell the balance and the defendant then prevented the further sale, by promising, that if the sale was stopped, and the goods delivered over to him, he would pay the plaintiff his commissions, then the plaintiff had a cause of action. If he refused to comply with his promise that the question of damage was for the jury. And that the plaintiff, not having the trouble and ex« pense of keeping and taking care of the goods, was a matter bearing upon the amount of (damages, which tho plaintiff had a right to recover.

There was a verdict for plaintiff. Rule for new.trial. Rule discharged. Judgment according to verdict, and the defendant appealed.

Heath and Jordan, for the plaintiff.

A. Moore, for the defendant.

Daniel, J.

This was an action of assumpsit. Plea, non assumpsit. The defendant insisted that the-promise, proved to have been made by him to the plaintiff, was a nudum pactum; and that, as he, by law, was entitled to his goods, which had been wrecked, and the plaintiff had no right to sell them, he had no right to commissions on that value, as if he had sold them. To this, the plaintiff replied, and proved, as the consideration for the promise made by the defendant, that, he, as a wreck master, had received the goods, by the consent of the captain of the wrecked vessel; and that he had (as by law, he was bound to do,) used care, trouble, and expense, in the preservation of the said goods. The Court charged the jury, that if the plaintiff had taken the goods, into his charge and custody, as wreck-master, then, the promise made by the defendant to pay was supported ; and that the expense of keeping and taking care of the goods, was a matter, bearing upon the amount of damages. Now, we can see no error in this charge. The defence set up, that it was a nudum pactum, failed, we think, when the plaintiff proved that the goods were placed in his' hands as wreck-master, by the captain, who was the defendant’s agent for that purpose. The care, trouble, and responsibility of the plaintiff concerning the goods, in his character of wreck-master, raised a -consideration for compensation; and the only effect of the agreement was to> liquidate the amount.

We think, that the judgment must be affirmed.

Per Curiam.. Judgment affirmed..