Sargent v. Wording , 46 Me. 464 ( 1859 )

The opinion of the Court was drawn up by

Davis, J.

The exceptions to the instructions given, and to the refusals to give the instructions requested, are not urged in argument.

The action is for wages as a seaman. It was not questioned that the services were rendered by the plaintiff. But the defendants contended that the master, by whom the plaintiff was employed, was sailing the vessel on shares, and that he alone was liable. They undertook to prove this fact.

They did not claim that the master who employed the plaintiff had made any contract with them, personally, as owners, to sail the vessel on shares. They testified that he never had made any contract with them. But they contended that he did make such a contract with the previous master, acting in their behalf. And, to prove this, they called one of their number, Daniel Haraden, who offered to testify to the following statément of facts, viz.: — “That immediately prior to the time when plaintiff went on board said vessel, Alonzo Rust-was master, sailing her on shares; that said Haraden then received a letter from said Alonzo Rust, which was produced and offered in evidence, stating that he wanted Oscar Rust to go master of said vessel upon the same terms, and that he should do so if said Haraden did not otherwise direct him by telegraph; and that said Haraden did not send any message to him.”

The fact that Alonzo Rust sailed the vessel on shares, before Oscar Rust was employed, was res inter alios. It had no tendency to prove upon what terms Oscar Rust was sailing the vessel.

The counsel for the defendants now suggests that the fact that he was master prior to the service of the plaintiff, and that the owners, personally, never employed Oscar Rust, tended to prove that the latter usurped the command of the vessel. Such an inference could not properly have been drawn by the jury. But the evidence excluded was, that Alonzo Rust sailed the vessel on shares, and not merely that he was master. And, although it is now claimed that this ought to have been admitted, as tending to prove that Oscar Bust usurped the command of the vessel, it was offered, with the rest of the statement, at the trial, to prove that Oscar Bust was employed by Alonzo Bust, in behalf of the owners.

If the letter of Alonzo Bust to Haraden had been written after he had given up the vessel to Oscar Bust, stating the terms of a contract already made, it would not have been competent evidence of the contract. It would have been but the declaration of the agent of the defendants, made out of Court, not under the sanctions of an oath. But the letter was written before any contract was made, and was merely a statement of what Alonzo Bust intended to do. It had no tendency to prove that such intention was carried into effect.

The defendants mistook the mode of proving the contract made with Oscar Bust. They might have done it by the testimony of Alonzo Bust, or of Oscar, or of any one else having personal knowledge of it. But the proof which they offered was clearly inadmissible.

Exceptions and motion overruled.

Tenney, O. J., and Appleton, Cutting, and Kent, J. J., concurred.