39 F. 512 -

512

FEDERAL REPORTER, vol. 39.

circ\lmstances of wind and tide and the signals exchanged were sufficient to show to those in charge of the Breakwater that reversing the engines of the Breakwater could not be delayed without risk of collision. The delay that occurred in reversing the engines of the Breakwater was therefore a fault, and renders the Breakwater responsible for the collision that occurred. The ferry-boat was guilty of no fault.

SACQUEJ,AND et al. v. THE METEOR.

(Circuit Court, E. D. New York. June 8, 1889.)
SEAMEN- W AGES-CUAHACTER OF SERVICE,

Libelant testified that he was hired by the master of a steam-yacht as mate, at $50 per month. The master testified that he was only hired as a deck-hand. at $30. There was no other mate than libelant. During the previous season he had been promoted from a deck-hand, at $30, to a mate, at $5ll, and as such served until the end of the season. During the season in controversy it appeared that until about three weeks before his discharge he wore a mate's uniform when visitors were around, bought for him by the master, who explained it by saying that it was necessary to have some one to act as mate to receive guests. Letters to libelant from the master, authorizing him to employ men, and to keep the work Il;oing, were introduced. When libelant left he did not apply for mate's wages. Held, that he was only entitled to the wages of a deck-haud,

In Admiralty. On appeal from the district court, 36 Fed. Rep. 566. In the circuit court new evidence was introduced to show that libelant only wore a mate's uniform when visitors were around, and that when he left he did not apply for extra wages. Wilcox, Adams & Macklin, for appellant. Noah Tebbetts, for appellees. BLATCHFORD, J. I think that, in view ofthe new proofs taken in this court, and of the whole case, the claim of Sacqueland for a mate's wages must be disallowed, but that the claim of each of the five persons to whom the district court allowed $6.75 for board money must be allowed. As the claimant has succeeded as to the claim of Sacqueland for a mate's wages, he must recover against Sacqueland the costs of this court; and, although the claim of Sacqueland, which is disallowed for a mate's wages, was coupled with the allowed claims for board money, it seems equitable that costs in the district court should be allowed to those who recover for board money.

FARLEY V. HILL.

513

F ARJ,EY

V. HILL

et al.

(Oircuit Oourt, D. Minnesota.

CONTRACT--EVIDENCE.

September 13, 1889.)

Complainant alleged that he entered into an oral agreement with defendants to purchase certain mortgage railroad bouds. to be used in purchasing the roads on foreclosure. defendants to furnish the requisite funds, and complainant to furnish information and assistance. He and a third person, who did not appear to be interested, testified that the contract was made as alleged, while one defendant denied it. the other defendant having died before his testimony could be had. It appeared that at the time of making the alleged contract, complainant was receiver of the property of one of the roads, and general manager, under the company. of the other road. He was past 60 years of age, of good reputation. and higbly respected. A large amount of money would be required to purchase the bonds. none of which. he alleged. was he to furnish; and. as bearing on defendants' reasons for making bim an equal partner, claimed that he first originated and suggested tbe scheme to them, but defendants showed by unsuspected evidence that the scbeme had been suggested to them about two years before. Complainant did not show that he had any information on the subject not known to the public. He and his witness testified that defendants said that they were anxious to have him interested because of the great change in the road since he had taken possession thereof, but it appeared that. he knew that defendants were negotiating for a purchase of the bonds very soon after he took possession; and his testimony and that of his witness was inconsistent in other respects. Defendants purchased the bonds after two years' correspondence, none of which sbowed that complainant had any interest, and the persons with whom the negotiations were carried on did not suspect that he was interested, and his only knowledge of the negotiations was derived from the agents of the bondholders. After the purchase of the bonds. and before foreclosure. defendants. wishing complainant's assistance as receiver, in working one of the roads, which he was slow to give, applied to the persons from whom they purchased the bonds to nrge him to take action. Meanwhile he wrote letters entirely inconsistent with his claim to be a partner of defendants. It also appeared that shortly after assuming control of the road, and at a time when, as he testified, he proposed to enter into the contract with defendants, he canceled contracts which one of the defendants held with the roads, and which were very advantageous to defendants and prejudicial to the road. Held, that the evidence did not show that the contract had ever been made.

In Equity. On bill for accounting. Beam & Cooke and Hiler H. Horton, for complainant. Geo. B. You.ng, H. R. Bigelow, 1. V. D. Heard, and M. D. Grover, for defendant Hill.
BREWER, J. The original bill in this case filed on K ovember 13, 1880. It alleged a contract, and sought an accounting. An amended bill having been filed on December 15, 1880, the defendants, Kittson and Hill, filed a plea thereto, which was sustained in this court on thp, hearing before Judges THE AT and NELSON. 4 McCrary, 138,14 Fed. Rep. 114. Complainant appealed to the supreme court, and, the case having been twice argued before that court, the judgment of this court was reversed, and the case remandpd, with instructions to overrule the plea, and direct the defendants to answer. 120 U. S. 303, 7 Sup. et. Rep. 534. Thereafter an answer was filed, testimony has been taken, and the case argued, and now submitted upon the pleadings and proofs. v.39F.no.11-33