54 Ala. 82 | Ala. | 1875
Tbe steamboat Swan, belonging to appellant and one Crimmins, bad been snagged and sunk 10 or 12 miles from Mobile in water 8 or 10 feet deep; and they, with tbe aid of tbe crew of tbe vessel, and of tbe steamboat Warrior and her crew, employed and chartered by appellant for tbe purpose, at $40 a day, bad been some time engaged in endeavoring to raise tbe vessel. Not succeeding, defendant sent Crimmins to Mobile “ tb employ plaintiff (Asbby) or some other person engaged in that business to raise her.” And by tbe aid during four days, of Asbby aud bis divers, tbe vessel, worth $10,000 or $12,000, was raised, aud towed to tbe city.
This suit was brought by Asbby in tbe circuit court for bis compensation for this service; and a judgment having
It is undisputed that the crew of the Swan in the employment of the defendant, and the Warrior and her crew, also in the employment of defendant under the charter, had been at work endeavoring to raise the Swan before Ashby was engaged, and that they were about her, and continued to work at her under the same employment and charter, when and after Ashby and his divers went to work. And appellant admits expressly in his bill of exceptions, that he did not claim the right to charge for the services .rendered by himself and the crew of the Swan — while it is not pretended that there was any express stipulation that Ashby should be charged with the expense of the crew of the Warrior or of that' vessel, or that he employed them, any more than he employed appellant and the crew of the Swan. In this state of the case, we do not perceive that there is any conflict, in fact, between the testimony on behalf of the plaintiff, and that on behalf of defendant for the consideration of the jury.
Unless the vessel was raised, Ashby could not “ see her to town ” or “to the wharf in Mobile ” — which is the same thing; since a steamboat always goes to a wharf there. Nor could she be kept afloat without the hole was patched. • The contract, according to the evidence on behalf of plaintiff, uncontradicted by that on behalf of defendant, was, that for his services as an expert and those of his divers in aid of the owners of the vessel and their employees in raising her, he, Ashby, was to be paid $500, contingent on the arrival of the vessel under his supervision, at Mobile. The opposite view would have made Ashby responsible to appellant for the assistance of the latter, and that of those in his employment from the time Ashby went to work, even though the vessel had never been raised and could not be, and Ashby should receive no compensation at all; which was certainly not the contract in evidence. The court, therefore, did. not err in
The judgment is affirmed.