106 Mass. 409 | Mass. | 1871
In this action of contract, the plaintiff alleges, in his special count, that in May 1867 he and the defendant made a contract by which the defendant, being the owner of the barque R. B. Walker, sold one eighth of her to the plaintiff for the sum of $964.38, towards which he then pud $400; that he was to be master of the barque, on the terms stated in the count; that a portion of his stipulated wages, and also of the earnings of his eighth part, were to be applied towards the payment of the balance of the purchase money; and that the defendant did accordingly employ him for one .voyage to Aspinwall, and there wrongfully discharged him, and refused to employ him further. He offered to prove these allegations, in substance; except that the title to the one eighth was not legally transferred to him. The writ is dated February 6, 1868. The presiding justice in the superior court ruled that upon this offer of evidence the action could not be maintained, and by consent of the parties reported the case to this court before verdict.
The defendants contend that the action cannot be maintained, because the parties became copartners. If we assume that they were such in respect to the earnings of the voyage that was made, yet it is clear from the statement of the case that they were not such in respect to this contract. The damages for the breach of it could not be recovered in a suit in equity. They are damages for excluding the plaintiff from the employment which it was agreed he should have.
They further contend that the contract for the employment of the plaintiff as master was void, as against public policy; and that it was at least not binding on the other part owners of the vessel. Before the contract was made, the deferdant had agreed
Certain matters of account in respect to the dealings of the parties were sent ,to an auditor, who has made a report, which is in the case. But the question of damages for the alleged breach of the contract is still unsettled; and this part of the case should be submitted to a jury. Case to stand for trial.