Eldredge v. Smith

Gray, J. 1. By the statutes of the United States, the fishing bounty is to be paid only when all the crew of the vessel share in the results of the voyage. U. S. Sts. 1813, cc. 2; 35, §§ 5-8 ; 1819, c. 89 ; 3 U. S. Sts. at Large, 2, 51, 52, 520. United, States v. Nickerson, 17 How. 210. Crowell v. United States, 21 Law Reporter, 466. But although no bounty is allowed unless the vessel is sailed on shares, yet a contract for a fishing voyage, on which the crew are to be paid by wages, is perfectly lawful. Baker v. Carey, 19 Pick. 496. In the agreement between the plaintiff and the defendants, as given in evidence, it was not stipulated that the crew should be shipped on shares; and no objection of variance between the declaration and the evidence was taken. The plaintiff indeed testified that “ he expected to get the bounty.” But it is expressly stated in the bill of exceptions that “ it did not appear that anything was ever said about bounty;” and there is nothing to show that the parties, in making their contract, intended to defraud the government by claiming a bounty to which they were not by law entitled. 2. The evidence of the engagements which the plaintiff made with his men, for the voyage for which the defendants had agreed to employ him as master, was therefore admissible for the purpose of showing the amount of the damages resulting to the plaintiff from the defendants’ breach of contract. 3. The general usage as to the mode of engaging and paying the crews of codfishing vessels was rightly admitted, as evidence tending to show the kind of voyage which the parties contemplated. Thompson v. Hamilton, 12 Pick. 425. 4. The testimony of an expert to the average of the results of similar voyages was appropriate and usual evidence, according to the practice of the courts of this state, and of the United States in this district, to show the value of the voyage for which the defendants had agreed to employ the plaintiff. The production of the books and papers containing the settlements of those voyages was not essential to the competency of this testimony, and would have tended to the needless multiplication of issues. The including, in these estimates of the results of voyages, of fishing vessels from Cape Cod, as well as- Beverly, was [144] unobjectionable, inasmuch as it appeared that the defendants’ vessel more nearly resembled the former than the latter, and that the difference in the mode of making up the settlements at the two places was taken into consideration by the witness in stating the results. 5. Evidence of the master’s proportion of the bounty on a voyage of this vessel and crew according to the laws of the United States might perhaps be admissible, in connection with the other evidence, to assist the jury in estimating the value of the voyage. But it was in no just sense a distinct element of damages. The refusal of the judge to instruct the jury that this must be excluded as an element of damages, without, so far as appears by the bill of exceptions, giving them any equivalent instructions, was erroneous; and the exceptions on this point must have been sustained, but for the offer of the plaintiff at the argument, in case the ruling should be held to be erroneous in this respect, to deduct from the verdict the amount of such bounty, which can be estimated from the facts stated in the bill of exceptions. Upon such remission, the judgment will be Exceptions overruled.