Oliver H. P. Brown & others vs. John N. Smith, 12 Cush. 366

By the Court. It appears to us that the instructions of the judge to the jury in the present case were correct. The defendant was appointed by the plaintiffs master of their ship for a whaling voyage. If he essentially violated any of the material orders and instructions under which he sailed, and which, on accepting the appointment, he had bound himself to obey, the action will lie. The declaration expressly avers such a violation, by an abandonment of the voyage on which he sailed, and employing the vessel and crew in other voyages for his own benefit.

It is not necessary to prove a violation of all the orders set out in the declaration; therefore, whether he violated his orders by going into the Pacific a month too soon, or not, is immaterial. If violations material in their character are alleged, and the same are proved, it is sufficient to sustain the action. Then as to the amount recovered of the defendant by the plaintiffs’ agent, in California; it is no bar to this suit.

It was brought for the purpose of getting the proceeds of the plaintiffs’ own property, illegally and wrongfully sold by the defendant, and then was settled by compromise, by the plaintiffs’ agent, giving no release or discharge. No claim was made in that case, apparently, for the principal item of damage now sought to be recovered, viz: that caused by running away with the vessel and" abandoning the voyage. The judge directed that the amount thus recovered should be deducted from the damages they should find the plaintiffs had sustained.

That we think was right, and this was the only use the defendant was entitled to make of the proceedings in California, by way of defence. On the subject of damages, we think the directions of the court were correct. Judgment on the verdict for the plaintiffs. This and the six following cases were argued and decided in Boston, in January, 1853 : Present; Shaw, C. J. and Dewey,Metcalf, Bigelow, JJ