Adams v. Augustine

Braley, J. The funds in the possession of the trustees are a part of the proceeds of a fishing catch, and the whole argument of the claimant corporation is, that under' the Provincetown lay the defendant, who was the captain, acted not as an owner of the schooner for the time being, but as its servant during the voyage. By whatever general term it may be designated, the contract between the claimant and the defendant not having been reduced to writing must be gathered from the evidence given by the fleet captain, and the vice-president of the company. Thompson v. Hamilton, 12 Pick. 425, 428. In explanation of what was meant by the particular lay under which the defendant shipped, both witnesses stated that it referred to the compensation or division of the net proceeds, which were to be shared in certain proportions by the crew, the owners and the captain, who also received an additional percentage from the company. They further testified that the authority to hire, pay and discharge the crew and to equip and victual the ship was lodged with the defendant as captain, who upon leaving port was in full command of the vessel and could resort to such fishing grounds and for as long a period as he pleased. He also was empowered to sell the fish in any market which he might select and to collect the amount of such sales. To what extent, if at all, the further statement of the fleet captain that he could dis 291 charge the defendant and* direct his movements except as to where he should fish modified the evidence of the vice-president, given in reply to questions put by the presiding judge, that the lay related only to the method of ascertaining the compensation, became a question of fact for the consideration of the trial judge in connection with the entire evidence. Upon this evidence a finding was warranted, without which the trustees could not have been charged, that a contract had been proved by which the defendant was in the exclusive possession and control of the ship until the completion of the voyage. The provision that the company as owner was to receive a share of the profits for the charter of the schooner did not constitute him its agent, or render it liable for the wages of the crew or the expenses of the venture. Taggard v. Loring, 16 Mass. 336. Baker v. Huckins, 5 Gray, 596. Rich v. Jordan, 164 Mass. 128. Noyes v. Staples, 61 Maine, 422, 423. Fox v. Holt, 36 Conn. 567, 570. Thomas v. Osborn, 19 How. 22, 30. The claimant, therefore, was not entitled to demand and receive the avails of the fish sold by the defendant, and the trustees properly were charged. Manter v. Holmes, 10 Met. 402. Rich v. Jordan, ubi supra. The cases' of Harding v. Souther, 12 Cush. 307, and Paine v. Silva, 168 Mass. 432, and 171 Mass. 276, upon which the company strongly rely, are dissimilar. In the first case, it clearly appeared by the shipping paper that the entire control of the voyage was lodged with the defendant as the owner of the vessel, to whom the fish were to be delivered for sale, and who was to account with the master and the crew for their respective shares of the proceeds. While in the second case, although reference is made to the Provincetown lay, it is stated that the action was brought to recover for supplies furnished by the plaintiff on the personal order of the defendant as owner, or on that of the master acting as his agent. It is manifest that in these cases the terms of a contract similar to those in the present case were neither involved nor considered. Exceptions overruled.