¶1delivered the opinion of the Court. I see nothing to support the first objection, (as between these parties,) viz. that parol evidence should not be allowed, to prove that the bill of sale, absolute in terms, was, in fact, to operate as a mortgage merely. But whether the defendant be considered as an absolute purchaser, or as a mortgagee in possession, would, in my judgment, be immaterial, provided there was an actual contract of hiring between him and the plaintiff; and in either case, the relation of owner and master would exist, so as to support the claim of wages, if the voyage was performed for the use of the defendant.
¶2What character the transaction might bear, as between the defendant, and the creditors of Minturn & Champlin, whom it was intended to deceive, is not now a question. The plaintiff was privy to the whole arrangement. He lent himself, throughout, as a willing instrument to effectuate the secret agreement between Minturn & Champlin, and the defendant. He was, in fact, a party to that agreement, and stipulated, in writing, with Minturn & Champlin, for his reward, viz. 100 dollars per month, and seven tons privilege. That contract shows, that he undertook the voyage with a clear understanding, that he was to look to them for his wages. It is proved, also, by the supercargo, that the plaintiff used his privilege of seven tons, in conformity to that agreement. It seems to me, therefore, to be utterly inadmissible, that he should now, since the insolvency of his real employers, be permitted to turn round and say, “ the defendant was ostensible owner, and, therefore, he must pay me wages, although it was known to me, that he had no interest in the voyage, and it was expressly agreed, that I should look to Minturn & Champlin for my compensation.5’
¶3The plaintiff is bound by his express contract, and cannot waive it by electing to sue the owner, when it appears, that he knew that Minturn & Champlin were the real shippers, and that the defendant merely lent his ship, and his name, to cover a voyage for their exclusive benefit, and without any claim for freight on hk part.
¶4On the merits, therefore, I think the plaintiff is not entitled to recover. But the objection to the form of action, seems to me, also, to be well founded. Here being an ex*174press contract for a stipulated amount and mode of compensation for the services rendered, viz. “ 100 dollars per month, and seven tons privilege,” the defendant cannot waive it, and insist on a quantum meruit.
¶5The defendant is, therefore, entitled to judgment.
¶6Judgment for the defendant.