The principal question of fact contested upon the trial was whether the sum 6f $633, for which a receipt was given by the libellant to the defendant, had, in fact, been paid. The whole bill of repairs was $1,412.69. Libellant admits payments on account amounting to $520. The libellant claims that this receipted bill for $633, for repairs to one of the scows, was made out and delivered, without any money being paid, at the defendant's request, to aid him in making out a claim for damages against a steamboat. The question depends mainly on the relative credibility of the libellant and his son, on the one hand, and of the defendant, on the other; and, without going at large into the evidence, it is sufficient to say that, upon the whole proofs, I entertain no doubt whatever that no money was paid upon the giving of this receipt. The defence set up in the answer, of a special agreement to do the whole work for $200, is not supported by any proof whatever. The question raised by the answer, as to the proper amount of libellant's bill, must be determined upon a reference. Whether the libellant's answers to the interroga,tories proposed by the defendant are to be deemed evidence in favor of the libellants, it is unnecessary now to determine. Decree for libellant for such balance, if any, as shall be found due upon a. reference. The question of costs reserved till the coming in of the report of the commissioner.
THE SCHOONER GEORGE
(Di8trid Ot;urt, 8. D. New York. July 27,1880.)
1. COLLIBION-BURDlllN OF PROOF NOT SUSTAINED
In Anmiralty. W. R. Beebe, for libellant. L. S. Gave, for claimant. CHOATE, D. J. This is a libel brought by the owner of the schooner Justus E. Earle against the schooner A..
FOBSYTH V. 8CHOONBB GEOBGli A. BlUNDBBTlL
Brandreth. The' Earle was laden with flagging stones, and the Brandreth with brick, and they were both bound up the East river, on the'afternoon of 28,1877. The tide was strong ebb, and the wind was about south-a three to four knot breeze. The case made by the libel is briefly this: the Brandreth was ahead, and had reached a point in the river about off Jackson street pier, very near to the New York shore, where she hung, struggling with the tide, making very little or no headway; that she had her main boom broad off on her port side, and her jib and foresail trimmed in; that the Earle went up through the eddy between the Brandreth and the shore till she also struck the tide, and both vessels hung there, making no headway because of the tide, the Brandreth being a little ahead; that while they were in this position a breeze sprung up, and those on board of the Brandreth carelessly permitte,d ,her head to swing off towards the Earle, and she came on, striking the Earle and forcing her against Jackson street pier with such violence as to break in her port bow, damaging her to the extent of $200. The faults alleged aga.inst the Brandreth are the not having her main boom properly trimmed in, not checking promptly her sheer towards the Earle-permitting her to run into the Earle-and not changing her course, and not keeping a proper lookout. The case attempted to be proved differs from the case alleged, in that it does not include or depend upon any sudden change of wind. The libellant has undertaken to show that after the Earle had partly gone by the Brandreth, and had then fallen back because the sails of the Brandreth took the wind out of her sails, the Brandreth crowded in upon the course of the Earle, bringing her pod quarter up to and in contact with the starboard bow of the Earle, although to avoid her the Earle fell off as far as she could, and thus both vessels were pushed in against the pier. whereby the Earle suffered the alleged injury. On the part of the claimant it has been attempted to show that there was no such crowding; that after the Earle fell back, finding that she could not pass inside of the Brandreth.
- - ._- ,- - -
she attempted to luff and pass under her stem; that she had not room to do 80, and her starboard bow came in contact with the port quarter of the Brandreth;\ that those on the Brandreth, seeing her coming, pushed off her bowsprit, and that thereby the bow of the Brandreth was thrown in towards the pier, and the tide striking on her starboard bow pushed both vessels towards the pier; that the Brandreth extricated herself and went' out into the river, while the Earle, getting into the eddy, was carried on against the pier; and the disaster happened wholly from the fault of the Earle. The burden of proof is on the libellant. His vessel was overtaking the other, and was bound to keep out of the way. The evidence is very conflicting. The case involves no question which can make it of any value as a precedent; and it is sufficient to say that the libellant has not sustained the burden of proof. Upon the whole testimony, the probabilities and the weight of evidence are with the claimant, and the libellant has failed to establish either the material facts alleged in the libel constituting the faults of navigation relied on to sustain his claim, or that different state of facts testified to by some of his witnesses. Libel dismissed, with costs.
O. B. U. P. 8. 00. 'P. W. U. 'lJWIilGBAPB 00.
RAILROAD CO. T:&LBGRAPH CO.
May 8, 1880.)
(Circuit Court, D. Kamal.
L CONTRACT-ULTRA VIltEB.-The Central Branch Union Paci1l.c Railroad Company were authorized by aet of congress to construct a railroad and telegraph line, as a part of the Union Pacific Railroad system, for 100 miles west of the Missouri river, upon the same tel'1Il8 and conditions, in all respects, as were provided for the construction of the railroad and telegraph line of the Union Pacific Railroad Company. Held, that a contract by such railroad with a telegraph com· pany, whereby it divested itself of the right to manage and control the telegraph line and fix rates thereon, wns ultra wes and void. AUantic <t PacijUJ Telegraph Co. v. Union Pacijie By. Co., 1 FED. REP. '149, foIlowed. %. BAME-SAME-REBTITUTION OF PROPERTY.-Where the railroad retook possession of such telegraph line, accompanied with legal proceedings to have the contract declared nuIl and an account taken, the telegraph company cannot compel a restitution of the property under the CODtract pending such proceedings.
In Equity. Motion to Dissolve Injunction. Everest It Waggener, for complainant. W. a. Webb, Peck, Ryan It Johnson, Karnes tJ ES3, Williams It Thompson and a. Beckwith, for defendant. FOSTER, D. J. The plaintiff filed its bill on the twentyseventh day of February last, in the state court, setting forth its corporation, and its franchises granted under the act of congress entitled "An act to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean, and to secure to the government the use of the same for postal, military, and other purposes," approved July 1, 1862, by which it was authorized to construct a railroad and telegraph line, as a part of the Union Pacific Railroad system, for 100 miles west of the Missouri river; that it did construct its railroad under the provisions of that act, and did enter into a contract, in 1867, with the defendant, the Western Union Telegraph Company, by which contract the .plaintiff was to construct its telegraph line aforesaid byerecting the poles, putting on the insulators and one wire, and v.3,no.8-27