Thomas et al. v. Osborn.
what ports he will sail in search of freight. His share of the earnings of the vessel are his wages, and he receives no other compensation for his services as master.
Before I proceed to state the facts out of which this controversy has arisen, it is proper to say that Leach states in his testimony that, in addition to the contract above mentioned, it was agreed, between the appellants and himself, that he should have the right to become a part owner of the vessel, to to the amount of one-eighth, whenever he paid for it. But he never paid anything on this account, and never, therefore, had any interest as part owner; and, upon his return to Plymouth, in 1852, as hereinafter mentioned, when his connection with the Laura ceased, this contract was cancelled. It was a written contract; but whether it was a part of his contract to sail the vessel upon “a lay,” is not stated in the testimony.
As Leach never became part owner, his authority over the vessel was derived altogether from his contract to sail her upon the terms above mentioned. That contract, as stated by him, was indefinite as to its duration. No particular time was fixed for its termination, nor the happening of any particular event. And it was during the continuance of this contract that the voyages were made, and the acts done which have given rise to this controversy.
The material facts in the case are derived mainly from the testimony of Leach, who was produced as a witness by the owners, who are the appellants; and it requires a close and careful scrutiny to understand the bearing of different portions of his testimony upon the different points raised in the argument. The examination itself, under the commission to take testimony, which was executed at Boston, is singularly involved and confused; and the answers, I regret to say, often showing a disposition to prevaricate, and a desire to make the best case the witness could for the owners, and against the libellants.
His testimoy begins by describing several voyages which he made in the year 1849, which are not material to the matter in issue, until he comes to the one from Rio to Valparaiso. This was his first voyage to the Pacific, and he arrived at Valparaiso in November, 1849, with a cargo consigned to Loring & Co., the libellants. This company was composed of citizens of Massachusetts, domiciled at Valparaiso for the purposes of commerce. In December, 1849, he sailed from Valparaiso to San Francisco, with a cargo on freight; the freight amounting to about seven thousand dollars. Being unable to procure a cargo on freight at San Francisco, he sailed for Tal-
