Donaldson v. Fuller

Tilghman C. J.

A point much litigated both below and here, is, whether the pilot who first offers himself, be entitled, exclusively, to the pilotage of an inward bound ship, or whether the master of the ship has a right to take his choice of all the pilots who are in the same boat, with him who offers himself. It seems, the pilots regulate this matter by lot or by rotation, among themselves. Several go in the same boat, but only one offers his service, according to the agreement among themselves. When it becomes necessary to decide that point, we will do it; but be the law as it may, in that respect, the plaintiff cannot recover upon this declaration. He declares for works and services, done by him, for the defendant, at his special instance and request; and proves, that ■no work or services were done, and that the defendant, so far from requesting his services, absolutely refused to accept them. So that the evidence directly contradicts the declaration. If the plaintiff be entitled to recover on the merits of his case, he must declare specially, and state the truth of the transaction. ■ I am of opinion that the charge of the Court was erroneous, and the judgment should be reversed, and a venire facias de novo awarded.

Gibson J. was absent.

Duncan J.

The declaration is for work, labour, and services, done and performed by Fuller at the request of, and for, Donaldson, the plaintiff in error, and for divers materials and necessary things used in and about the said work, found and provided by Fuller at the like special instance and request of Donaldson. The plea is non assumpsit.

The evidence given by Fuller was, that though he offered, and was ready to do the work, Donaldson, so far from requesting him to do the work, would not suffer him to do it. For the testimony of the plaintiff’s witness, Barnes, is that Fuller did not want to leaye the ship ; that Donaldson said there was not room for Barnes and him both in the cabin ; and that if he was entitled to the pilotage, his leaving the ship should be of no consequence; and if he was entitled to pilotage, by going up in the ship, he should be entitled by leaving her ; and if he would go on board his boat he should be as much entitled as if he staid. Barnes received the full pilotage. Barnes likewise proves,' that Fuller did first oiler himself to pilot the vessel, and was first on board her, for this purpose.. The real grievance in this case consists in this, that Fuller stood in that situation by the laws of the land, that Donaldson was bound to employ him, and could employ no one else, to pilot his vessel; and, therefore, is bound to make him the allowance claimed by him for services never performed, as if they had been performed. Does this support the allegation of Fuller, the plaintiff below? Was that fact put in issue ? Does the matter alleged, and the matter proved, either in form or substance, correspond ? It is most evident that it does not.

The real matter in controversy, (and an important one it is to a numerous and valuable class of citizens,) is not raised on the record. It is, whether a regularly licensed pilot, who shall first offer himself to any inward bound vessel, is not entitled to the charge thereof; and, if he is so entitled, whether this is not exclusive of all other pilots ; and whether, if the master of such vessel rejects him, and accepts of the service of another, a duty or obligation is not imposed of paying him, as if he had piloted the vessel. On this question I do not offer any opinion, as it does not necessarily arise on the present state of the pleadings. It is on the ground of variance alone, I give my opinion for reversing the judgment.

Judgment reversed, and a venire facias de novo awarded.