Thomas et al. v. Osborn.
He is asked, in one of the interrogatories: “At what period did the owners take efficient steps to displace you?—at any period before Captain Weston was sent out?” And he answers: “They did not take any efficient steps, any further than to request me to come home.” And in answer to another interrogatory he says, he did not yield to their wishes, because he thought he had a right to remain there if he chose. These was no order, therefore; no charge of misconduct; no notice that they would put an end to the contract; nothing more than a request which Leach did not comply with, because he thought that while the owners suffered the contract to continue, he had a right to select the theatre of his operations, and to act upon his own judgment. And undoubtedly he was right in this respect, unless the owners put an end to the contract, which they might have done at any moment, if they supposed him to be no longer acting in the line of his duty. But whatever might have been their opinion as to the soundness of his judgment in selecting the Pacific instead of the Atlantic for the employment of the vessel, when they requested him to return, they undoubtedly acquiesced in his opinion when they received his answer declining to return, and continued for nearly two years afterwards to sanction his conduct, by suffering him to remain there, receiving remittances from him, and paying his drafts, and settling his account, without making the slightest objection to allow him one-half the freights, according to the contract, for his services as master. And the charge of taking the vessel to the Pacific, and illegally detaining her there for his own benefit and advantage, was never heard of until payment for the repairs and supplies furnished to their barque was made by the libellants. And if such a defence had been founded in fact, it would have been easy for the owners to prove it conclusively by producing the correspondence between them and Leach. But no part of it has been offered in evidence. The fair inference from the testimony therefore is, that they assented to his proceedings, and approved of his remaining, after receiving his answer to the request for his return.
But if the case were otherwise in this particular, and it had been proved that Leach illegally and against their orders detained the Laura in the Pacific, I do not see how that would affect the claim of the libellants, unless in furnishing those supplies they knowingly aided and abetted him in his breach of duty to the owners. The argument is, that they did knowingly aid and abet him. But it would be a sufficient answer to it to say, that no such charge is made against them in the answer. It is made against Leach; but there is not the slightest intimation that Loring & Co. had any knowledge of it.
