Mining Co. v. Cullins, 104 U.S. 176

The court found that the company, a corporation organized under the laws of Great Britain, was, at the time the services were rendered, the owner of and engaged in working a mine [p. 177] called the Flagstaff Mine, situate in that Territory, and that one J. N. H. Patrick was the general agent and manager of the company’s mining and smelting business in America; “that on or about the fourteenth day of December, 1873, the said company, by said J. N. H. Patrick, its agent, for that purpose duly authorized, employed the plaintiff for an indefinite time thereafter to direct the work in its said mine, and with authority to employ and discharge miners, and procure and purchase supplies for working said mine ; that it was the duty of the plaintiff, by virtue of said employment, to plan, oversee, and direct the work in said mine, direct the shipping of ore, and generally to control and direct the actual working and development of the mine; that the plaintiff, while in the employment of said company, performed said duties, and in the performance thereof did some manual labor; ” and that, at the commencement of the suit, there was due to the plaintiff from the mining company |l,530 for wages earned by him under said employment. The court gave judgment for that sum, and declared it to be a lien upon the mine.

The case which comes nearer supporting the contention of the plaintiff in error than any other is Smallhouse v. Kentucky, ^c. Co., 2 Mon. T. 443. But in that case the court says, that “ from the nature of the plaintiff’s employment, as averred by himself, it does not appear that he was an architect or laborer, or that he labored directly in the construction of the buildings, but rather that he was employed by the corporation at a fixed salary to manage and superintend its affairs at the [p. 179] place named.” That case is fairly distinguishable from the one now under consideration ; but even if it fully supported the contention of the plaintiff in error, it is entitled to no more weight than the decision of the Supreme Court of Utah in the present case.

The “Woodland ” was a British bark owned by the claimants, residents of St. John, New Brunswick. In November, 1870, while on a voyage from Montevideo to New York with a cargo, being in distress, she put into the Danish port of St. Thomas for repairs, which were necessary before she could safely proceed on her voyage. J. Niles, who carried on business under the name of J. Niles & Co., attended to the affairs of the vessel at St. Thomas, landed the cargo, and sold a portion of it, on which he received an amount sufficient to reimburse all the moneys expended; but he charged for commissions and insurance $6,875. As to the insurance, none was actually effected, and the commissions were on an excessive valuation. The master approved all the bills, and drew drafts on his owners for a balance of $6,106.24, which expressed on their face that they were “ recoverable against the vessel, freight, [p. 181] and cargo.” Two pf these drafts the libellants discounted, and this suit was brought for their recovery. The third, for $1,500, was given by Niles to the roaster upon a corrupt understanding that it was to be his share. The two drafts have not been accepted or paid, and the libellants are the owners thereof, having advanced money upon them in good faith and without any knowledge of the fraudulent acts of Niles and the master.

Now, we think it clear that if Niles were here as appellant instead of these libellants, he would not be entitled to the reversal of this decree upon the findings as they stand. The findings sent here under the act of 1875 furnish the only evidence of the facts which we can consider. It is incumbent on the libellants to prove a debt from the vessel to Niles, and its amount. Until this proof is made they cannot recover. If the settlement between the master and Niles had not been impeached, that would have been enough, for the master is the agent of the owner for all such purposes. But it has been impeached. The court has expressly found that, although insurance was charged for and allowed, none was ever effected, and that the commissions were calculated on an excessive valuation. It has also found that there ^as a corrupt understanding between the master and Niles, under which the master was given one of the drafts which he drew on his owners, as “ his share.” Under these circumstances it is clear that the approval of the [p. 182] accounts by the master amounts to nothing as evidence of what was actually due, and without that there is nothing to show that Niles is entitled to anything. His advances were all paid by sales of the damaged cargo, and while there was 86,875 allowed him for commissions and insurance, the balance due to him on the accounts as stated was only $6,106.24. Thus it appears that in addition to his expenditures he must have received $768.76 on account of commissions. In the absence of anything to show what his services were reasonably worth, we cannot say from the findings that anything is honestly due Niles on his accounts.

This is an appeal from a decree in admiralty on the instance side of the court. There is nowhere in the record a statement of facts and conclusions of law such as is required by the act of Feb. 16, 1875, c. 77, 18 Stat., pt. 3, p. 315. The'case was heard on its merits in the Circuit Court at the April Term, 1878, and decided September 24. On the 19th of September a bill of exceptions was signed and filed to put on record the objections of the present appellants to the rulings of the court on their motion to dismiss the appeal from the District to the Circuit Court. When the case was decided on its merits a reference was made to a commissioner to ascertain and report [p. 184] the amount of damages. A report was filed Jan. 3, 1879, to which exceptions were taken. These exceptions were heard and a final decree rendered March 15. An appeal was allowed in open court the same day, and the cause docketed here September 13. We cannot find from the record that the court was ever asked to state its findings specially, and it is conceded that in fact no such statement was ever made. The appellants now move for a writ of certiorari to the Circuit Court to certify up its findings.

The first and third assignments are disposed of by The Abbotsford (98 U. S. 440), and The Benefactor, 102 id. 214. In these cases it was held that, under the act of Feb. 16, 1875, c. 77, entitled “ An Act to facilitate the disposition of cases in the Supreme Court of the United States, and for other purposes ” (18 Stat., pt. 3, p. 315), the finding of facts by the Circuit Court in admiralty is conclusive. Upon an appeal from a decree in admiralty rendered since May 1, 1875, when the act went into effect, we cannot look into the evidence, or the [p. 188] opinion of the court, to ascertain the facts. The evidence is not properly in the record, and, by an amendment to rule 8, promulgated May 2, 1881, it is excluded from the transcript. The Adriatic, 103 U. S. 730. Where the Circuit Court has passed on all the issues, we cannot listen to complaints that it has refused to find certain facts which it was asked to find, or has found certain other facts which the weight of the testimony did not warrant.

Immediately before the collision the brig was sailing close-hauled to the wind, the schooner had the wind a little free. When the brig was discovered from the schooner, the two vessels were approaching each other end on, or nearly end on, so as to involve the risk of collision. A short time before the collision the lookout on the schooner discovered the brig dead ahead. Her wheel was at once put to port, and she bore off. The schooner was not discovered by the brig until the brig had been discovered by the schooner. The lookout was the first to see the schooner from the brig, and called out “ Light right [p. 189] ahead.” The brig’s wheel was then put to starboard, and she swung off one point. On being hailed from the schooner and told to luff, the wheel was put to port; but before it could materially affect the course of the brig, the two vessels came together.

He then goes on to argue from the testimony that the light seen by the brig was green. As we have already shown, we have nothing to do with the testimony. We are limited strictly to the findings of fact, so that the point presented by his contention is whether, upon the facts found, the rule of navigation was too broadly stated by the court. The answer [p. 190] is, therefore, plain. The court did not find that the light seen by the brig was a green light, and did find that the vessels were approaching each other end on, or nearly end on, so as to involve the risk of a collision. The situation as found by the court was, therefore, precisely the one provided for in the sixteenth rule, which it was the duty of the brig to obey by putting her helm to port. The rule to be deduced from the conclusion of law drawn by the court from the facts found is not a whit broader than the sixteenth rule itself, and is really only a repetition of that rule.

The appellant next contends that the findings of the Circuit Court do not show that the schooner kept a good and proper lookout. The court found that she had a competent lookout at his post, on deck, forward of the windlass, but the appellant [p. 191] says that the fact that the lookout did not discover the lights of the brig until just before the collision shows that he was not vigilant in the performance of his duty.