tlJ;e£ormer. The coqrLis aQcordingly witl)out the th.e daJDage, even: if it :beeonceded that it would have; beep II:(orfil prudellt to h,a:ve left the barge at the)andipg. From what has been hOWlilv.er" I wQP,W not have, it inflilfred that the court finds ,that barge frQm the ClarksvWe)anding while in a sinking :con,dition. Such conclusion, in Ply opinion, is not justified by the evicience. Aftel' the barge.was tiaIly submerged, and badly listed, the respondent was forced, by the necessities of the case, either to allow the barge to sink where it lay, or to pull it out, into the stream; and attempt to land it at some other place, where it would rest on an even keel. .. The latter courile promised some advantag('sin the way of preventing the cargo from sliding into the river, besides removing what would have been a formidable ob&truction at the landing, if the barge had there sunk. It appears to me that the respondent was compelled to choose\>etween the alternatives last named, in consequence of the unseaworthiness of the barge, for which the libelant was responsible; and although I am not able to say that he pursued the wisest course, yet I am equally unable to say, that he was culpably negligent. The respondent, under his coqtract, did not insure the safety of the barge. He was simply under obl,i,gation to do what was prudent, llnd seemed to promise the best results for the owner in case a loss became imminent through unseaworthiness. The evidence, as before stated, does not satisfy me that he was guilty of any culpable neglect in the performance of such duty. The libel will be dismissed in accordance with the foregoing views. The cross,d,emands mentioned in the third and. ninth articles of spondent's answer must be disrpissed for the reasons following: Respondent is not entitled to recover the full contract price for towing the barge from Quincy to St. Louis, as the voyage was broken up at Clarksville. At moat he can Qnly recover reasonable compensation for tQwing the craft to Clarksville, Mo., and there is no evidence of the reasonable value of such !lervice. The sum of $25, claimed for towage from Cottonwood island to Quincy bay, is not recoverable in this action"as there is no legal evidence of a promise on libelant'!l part to pay that sum, and no evidence of the reasonable value of such service. Both cross-demands are ther&fore rejected, and a decree,wiU be entered accordingly.
'IJ. THE ADDIE SCHLAEFER.
(DiafrictOowrf. D. NetD Jer8ey,
COLLJ,8TON-BETWEENVEBSEil,S 4T WU4RF.
January 7, 1889.)
The schooner S. was towed to a wharf. and berthed on the outside and wlthin two or three feet of the canal·boai C,; which was unloading at the wharf. ,The .B.was warned by the C. to keep off. or both :Would go aground at low water. audthe C. be injured; but the S. remained, where she was, although she could easily have gotten away by employing a tug, if not by her own efforts: When ,the tide fell, the C. grounded, lind collided with the S., receiving some injury,
CALL vi THE ADDIE'SCHLAEFER.
buttinally getting away. On.returning to her position, it was fou'nd thatthe 8. had got severaUeet closer to the wharf. in consequence of which. at th., next low tide, the vessels again collided, the C: further injury. The S. conld easily have moved o'lrathigh tide before the second eollislon. H,ld. thatsbe was liable for the damages caused by both collisioDs.
In Admiralty. Libel for'collision. Carpenter. c:C7. Mosher, for Ii Bed'te,Muirheid c:C7McGe&jilfor claimants.
WALES, J. Tb}S is a suit brought to recover damages sustained by thecanal:.boll.t Ellen can in colliding with the schooner Addie Schlaefer, #hileboth vesselS were lying in the Moriiscanal.;basin, Jersey City, on the nights of the 8th and 10th of November, 1884. The canal"boat hltd been moored to a wharf on the south side of the basin for several prior to the collision, discharging gas-pipe. About midday o,n Saturday, the 8th, the schooner, loaded with pine wood, was towed in by a tug, and berthed on the outside and within t\t6 or three'feetofthe Call,' so that perseus could eaSIly step from one,vessel to the other. Both vessels laid side by side, with their bows to'the westward. The tug had nosboner cast loose, than those on board theSchla.efer were warned by the men on 'the Call to keep otl'; because, if she remained where she wa$, both· vessels would go aground at low water, ",n4 the canal-boat would be in)uretl by the schooner; but the mate, who was in charge of the scho6ner, paid no attention to the warning. The tide then at flood. Shortly aftei:' this,one of the hands on the Call went on board the Schlaefer, and requested the latter to breast off, so· that the Call could, have room to shift and continue her unloading; but this request was also unheeded. Theseoccurreneestook place 'during the absence of the captains of the respective boats.. 'When the tide fell, the Call grounded,and the bottom of the basin composed of soft mud, and sloping from the wharf,'she slid down against the schooner, her rail being caught under the erids of the'pine wood which projected over the side ofthe latter. There is some dispute as to whether the the Schhtefer,or the Schlaefer'listed against the Call; but this matters little, since it is eertaiIi that the vessels were jammed together, and that on the nseof the theoow oftha CallwltS' kept down by the projecting deck-ldad of the schooner, while her stern was afloat, thus straining and' twistirig the Call, and doing other By cutting ofr the el1ds of the wootl, the Calhvas released, iiridhauled out and lower' down the basiil,and was not brough1l <hack to' #harf until Mond'ay, the:''! Oth; Ih'the meah " time she had been turned end for end, so that her after-hatch could be unloaded by the derrick, and it was then discovered that she could not take exactly her former position between the wharf and the schooner, owing to the closer proximity of the latter. The work of unloading was continued on Monday, and, at the fall of the tide again on that day, the vessels once more came together, and the schooner's anchor ripped or stove in some planks of the Call's cabin. The schooner floated at high tide on Monday, and could easily have moved off, but persisted in hold-
mg on whereshe was. The claimants allege that tbe tug bad left tb, llchooner aground, and that those on 'board were ignorant of the nature of::the bottom of the basin,which was. uneven next to the wllarf, and sloped rapidly away; that the schooner was unable to move, and, being consigned to the same wharf, had a right to stay where she was left by the tug, in order to secure the place of the Call when the latter had finished unloading; that, on the other hand, the canal-boat could readily have hauled out from the wharf before low water, and should have done so both on Saturday and Monday nights, and so escaped the damages, which were the result of her own nj:lgligence·. The testimony shows that the Schlaefer was in fault frqm the beginning. The Call was entitled by precedence to maintain her position at the wharf utltil she had finished discharging her cargo. She had been unloading for several days before the schooner camf3 in, and had grounded at low water without suffering any injury. The Schlaefer had received timely wapling to keep off, and it was her duty to hl1ve done so; but she obstinatelyrefused to move. The excuse that she was aground, and could not change her position, is refuted by the fact that she did move a few feet on Monday, and could have gone further away had her captain been so disposed. At all events, a small outlay for the services of a tug would have put her .in a place where she could do no harm to the Call. Under .the customary rule of "First come, first served," the (Jall had possession of the wharf, and was entitled to reasonable room to work in without interference by the Schlaefer, which'had timely notice to keep out of the way when the tide fell. The mud at the bottom of the basin was very and would, not have opposed much resistance to the moving of the schooner to a point lower down, or nearer the north side of the basin, and thus have left sufficient room for the Call. The testimony of the mate of the Schlaefer, that he received no notice to move off before it was too late for him to do so, is in direct contradiction of the libelant's witnesses. His examination was not taken until more than two years after the col. lision, and the lapse of tjme may have more or less impaired his recollectionof the facts. The libelant's witnesses spoke of what was fresh in their memories, and had no moti\re for misrepresentation. It was the duty of the Schlaefer to take every precaution to avoid interference with, or doing injury to, the Call, especially after receiving the cautionary notices of danger. On these facts there can be no doubt of the law of the case, or that were caused by the fault of those having charge of the schooner. The Lake, 2 Wall. Jr. 52. There will be a decree for the libelant. with an ordez of refezence to asceztain the damages.
YOUNG ". FOX.
Fox et ale
Fox et 01.
(Oirtmie (Jourt, E. D. Tennessee 8. D. November 23,1888.) 1.
TRUSTS-RIGHTS AND DUTIES OF
P. owned thirty shares of stock in a corporation of which he was general manager and director, which he sold to Y. for $7,000, $5,000 of which was paid. Y. then took his place in the company as manager. etc. While he was acting as such, an officer called on him with an attachment against P., Rnd asked him if P. owned any stock in the company. He replied that he did, and pointed out the 30 shares. and gave assistance in levying on them. He gave P. no notice of the suit, but attended the attachment sale, and boughl; the stock for $496. Y. having failed to pay the $2,000 when due, F., another stockholder, who had guarantied its payment. paid it. In a suit between them as to the ownership of the stock, Y. relied entirely upon his purchase at the attachment sale, repudiating his purchase from P. Held. that he must be treated as holding the stock in trust for P. and l!'., and that, in view of his conduct, he was not entitled to have refunded the $496 which he had paid.
In a former suit between Y, and F, it was adjndged that Y.'s title to the stock was superior tQ F.'s under his payment of $2,000 to P., but the question of trust was not raised. Held, that that adjudication did not preclude F. and P. from asserting that Y.held as trustee.
In Equity. Cross-bill to declare and enforce a trust. On final hearing. . De Witt Thomas, W. L. Eakin, and PeUibone, Warder Evana, for complainant. Richmond Olark, for defendants.
KEY, J. March 5, 1883, H. G. Young filed his bill in the chancery court of the state of Tennessee, against the South Tredegar Company, alleging his purchase of 30 shares of stock in said company, attached as the property of W. H. Powell in a suit. in said court by the Benwood Iron &. Nail Company against said Powell. The relief sought was to have said stock transferred to Young upon the books of the company, and· to prevent the payment to anyone of the dividends and profits which had accrued or might accrue on said stock, and for a decree of the same to Young. On the 5th of April, 1883, H. L. Fox filed his bill in said chancery court against H. G. Young and others, alleging that Fox was the owner of said 30 shares of stock, and that Young had no title thereto, and he asked to have a decree declaring him the owner of said stock. The causes were consolidated, and found thbir way to the supreme court of Tennessee, in which it was determined that Young was the lawful owner of the 30 shares of stock, and entitled to have them placed to his credit on the books of the company, and to have a certificate issued therefor, and was entitled to all dividends of said shares of stock since his purchase thereof; and the cause was remanded to the chancery court, so that an account might be taken of the matured dividends declared upon the stock since Young's purchase. 2 S. W. Rep. 202. Not content . . v .