14 F. 302 | D. Cal. | 1881
There is no dispute as to the amount of wages earned by the libelant on the two voyages, viz., $134.94. The captain claims to have paid him on account various sums, the greater part of which the steward admits. The master took no receipts, and kept no accounts. He fails to produce a single written memorandum of any payment whatever. The man having shown himself entitled to a certain sum, it is for the master to show payment in whole or in part. The testimony being conflicting, and there being no circumstances developed which justify me in rejecting the steward’s evidence, I must decide the matter against the party upon whom rests the burden of proof and the duty of making out his case affirmatively. The man admits having received $32. He charges the captain $1.50 for a pig supplied him. This does not appear to be disputed. I think, too, the evidence shows pretty clearly that two dol
It is evidently a stale and, I think, doubtful claim. It is certainly not established by a preponderance of affirmative proof. The most that can be said is that the proofs are balanced.
I shall allow the claim for $6.50 paid by the master to one Richards at libelant’s request. His testimony is corroborated by that of another witness.
The four dollars for a woolen shirt I cannot allow, for the reasons above given. The steward denies that he received it; and the master has no testimony but his own oath, against the oath of the steward.
I shall allow the steward $8.75 which he appears to have paid for a chart, etc., furnished to the vessel. He bought the articles, perhaps, without authority, but the captain ratified the purchase, by accepting and appropriating them, and he admits they were needed by the vessel.
I at first thought the captain’s claim for $14 for a gun purchased by the steward should be peremptorily rejected, as the credit seemed
■ The master, on being applied to, seems to have assumed the liability. My recollection is that he only agreed to pay it out of the steward’s wages; but my notes contain no such qualification. The gun has since been returned by the steward to the vendor, who seems not to have rescinded the sale, but to hold the gun for his lien. It would evidently be unjust to deduct this amount from the steward’s claim, unless the master pays it; and he may very probably defeat any action by the vendor against him. On the other hand, if the vendor should recover from the master, injustice will have been done 'him by a refusal to recognize his liability and to allow him the deduction claimed. I shall, therefore, hold this item in abeyance. If the steward will produce a memorandum from the vendor rescinding the sale, or accepting a sum in settlement thereof, and releasing the master, I will disallow the deduction. Otherwise, I shall impound the sum in the registry until the master’s liability is determined. The accounts will therefore stand :
Amount earned, - - - - $134 94
Less payments, etc., $32.50, - .• - - - - 32 50
$102 44
Add nayment for chart, $8.75, f - - 8 75
$111 19
Less $6.50, paid by libelant’s request, - - 6 50
$104 69
--For which sum a decree will be entered, but of which $14 will be retained in the registry.