Halsey Baker versus Joseph Corey et al., 19 Pick. 496

Shaw C. J. The first exception taken at the trial and now renewed, is, that there is a variance between the special agreement set forth in the third count, and that proved ; that it is set forth as an absolute agreement for $ 33, whereas the agreement was, to pay the plaintiffs $ 33 per month, or a share of fish, at his election. Were this the only count, it might be open to this exception ; but there is a count in indebitatus assumpsit for services.

Then we take the rule to be well settled, that in declaring on an open executory contract, it must be set forth truly and fully ; but when the contract has been performed, and has resulted in an obligation to pay money, it is sufficient to set out the indebtedness, without stating the contract specially, from which it arises. Felton v. Dickinson, 10 Mass. R. 287. It was then contended that the agreement made by Corey, the master, if made as alleged, was binding on him alone, and not on the owners.

In considering this question, we are to treat it as if the articles made by the plaintiff and his son, to go on shares, were out of the question, as null and void ; beause, if they were binding, they would be conclusive. By the general rule of the maritime law, the personal contract of the master for the wages of seamen, binds the owners, and the seamen may have their remedy against either. But there may be a distinction between freighting vessels and fishing vessels, in this respect; and we do not think it necessary to place the decision of the present case on that ground.

But it is obvious, we think, that the contract enures to the benefit of the owners, because the fish, when caught and brought in, are considered as their property; and even where there is a valid and binding contract made pursuant to the laws of the United States, to go on shares, the fish are delivered in the first instance to the owners ; and the remedy of the fisherman must be on the master or owners.

But, whatever may be the common custom, or the law of the United States, in regard to bounty, it is competent for the owners of a fishing vessel, to engage men at wages, to navigate the vessel and take fish for their account. And the Court are of opinion, that where one of the owners of a fishing vessel, acts as master, and the others do not interfere, he must be deemed agent for the owners ; that the contract enures to their use, and binds them jointly, and that such was the effect of the agreement in the present case.

The last ground of defence was, that the plaintiff and his son had both signed articles, stipulating to go the voyage on shares. But it was answered, and evidence was offered to prove, that the signatures to these articles were obtained by false and fraudulent representations, to enable the owners to obtain the bounty under the laws of the United States. Nothing, we think, can be clearer, than the correctness of the instruction given on this point.

If the signatures of the plaintiff and his son were obtained by false and fraudulent representations of Corey as to the effect and the purposes of these articles, and the contents were concealed from them, they were not binding as agreements ; and therefore the prior agreement of Corey stood unaffected by these articles. The evidence is not reported, and its weight and sufficiency are not in question before us ; it was exclusively for the jury.

It was suggested, rather than made the ground of legal exception, that it would be dangerous to set aside a formal written agreement, between the master and a seaman, on the testimony of other seamen. The general rule is, that any instrument may be impeached by proof of fraud and imposition in obtaining it, and that such fraud may be proved by the testimony of witnesses. Other seamen, having no interest in the event of the cause, are competent, and if there is any thing in their personal characters, or in the relation in which they stand, to give them a bias in favor of a fellow-seaman, it goes to their credit.

The same considerations apply to most cases, in which a seaman is a party on one side, and a master or owner on the other. Judgment on the verdict for the plaintiff.