Lufkin v. Patterson , 38 Me. 282 ( 1854 )

Tenney, J.

— This action is for the recovery of the balance of wages of the plaintiff’s minor sons on board the brig R. Patterson of Belfast, of which the defendant was master. The plaintiff obtained a verdict, and filed exceptions to the ruling of the Judge, in admitting as a witness, Robert Patterson, one of the owners of the brig; and also to the instruction to the jury, that the plaintiff could not recover in this case for the alleged breach of the contract, the writ containing no appropriate count for such a claim.

Prom the facts, that the witness was an owner in the. brig, and that the defendant was the master, the presumption arose, that the former was interested in the earnings, and would be affected by the contracts, of the latter as master, touching the expenses incurred in her ordinary operations. But he was allowed to testify, upon its appearing, that the defendant sailed the vessel on shares. This fact alone would not make him a competent witness for the party, who called him. The defendant might have had even the control of the brig, under the contract, by which he took the same on shares, and have been the owner pro hac vice, and still be holden to render the owners a share of the ivet earnings, after deducting the charges for manning the vessel, and other expenses-. In the absence of proof of the terms of the agreement, the presumption of interest, arising from ownership is not removed, and the witness was not competent.

2. The case finds, that the action was brought for an omission of the defendant to make full payment for services, which he had received of the plaintiff;; and it does not appear, that any other cause of action was alleged. No claim was made in the writ for special damages arising from the ■failure to fulfil the contract, by making payment according to its import, and the instructions to the jury were not erroneous. Exceptions sustained.

Shepley, C. J., Howard and Hathaway, J. J., concurred.