circumstances of wind and tide and the signals exchanged were sufficient to show to those in charge of the Breakwater that reversing the engines of the Breakwater could not be delayed without risk of collision. The delay that occurred in reversing the engines of the Breakwater was therefore a fault, and renders the Breakwater responsible for the collision that occurred. The ferry-boat was guilty of no fault.

SACQUELAND et al. v. THE METEOR.

(Circuit Court, E. D. New York. June 8, 1889.)

SEAMEN-WAGES-CHARACTER OF SERVICE.

Libelant testified that he was hired by the master of a steam-yacht as mate, at $50 per month. The master testified that he was only hired as a deck-hand, at $30. There was no other mate than libelant. During the previous season he had been promoted from a deck-hand, at $30, to a mate, at $50, and as such served until the end of the season. During the season in controversy it ap peared that until about three weeks before his discharge he wore a mate's uniform when visitors were around, bought for him by the master, who explained it by saying that it was necessary to have some one to act as mate to receive guests. Letters to libelant from the master, authorizing him to employ men, and to keep the work going, were introduced. When libelant left he did not apply for mate's wages. Held, that he was only entitled to the wages of a deck-hand.

In Admiralty. On appeal from the district court, 36 Fed. Rep. 566. In the circuit court new evidence was introduced to show that libelant only wore a mate's uniform when visitors were around, and that when he left he did not apply for extra wages.

Wilcox, Adams & Macklin, for appellant.
Noah Tebbetts, for appellees.

BLATCHFORD, J. I think that, in view of the new proofs taken in this court, and of the whole case, the claim of Sacqueland for a mate's wages must be disallowed, but that the claim of each of the five persons to whom the district court allowed $6.75 for board money must be allowed. As the claimant has succeeded as to the claim of Sacqueland for a mate's wages, he must recover against Sacqueland the costs of this court; and, although the claim of Sacqueland, which is disallowed for a mate's wages, was coupled with the allowed claims for board money, it seems equitable that costs in the district court should be allowed to those who recover for board money.

FARLEY V. HILL et al.

(Circuit Court, D. Minnesota. September 18, 1889.)

CONTRACT EVIDENCE.

Complainant alleged that he entered into an oral agreement with defen ants to purchase certain mortgage railroad bonds, to be used in purchasing the roads on foreclosure, defendants to furnish the requisite funds, and complainant to furnish information and assistance. He and a third person, who did not appear to be interested, testified that the contract was made as alleged, while one defendant denied it, the other defendant having died before his testimony could be had. It appeared that at the time of making the alleged contract, complainant was receiver of the property of one of the roads, and general manager, under the company, of the other road. He was past 60 years of age, of good reputation, and highly respected. A large amount of money would be required to purchase the bonds, none of which, he alleged, was he to furnish; and, as bearing on defendants' reasons for making him an equal partner, claimed that he first originated and suggested the scheme to them, but defendants showed by unsuspected evidence that the scheme had been suggested to them about two years before. Complainant did not show that he had any information on the subject not known to the public. He and his witness testified that defendants said that they were anxious to have him interested because of the great change in the road since he had taken possession thereof, but it appeared that he knew that defendants were nego: tiating for a purchase of the bonds very soon after he took possession; and his testimony and that of his witness was inconsistent in other respects. Defendants purchased the bonds after two years' correspondence, none of which showed that complainant had any interest, and the persons with whom the negotiations were carried on did not suspect that he was interested, and his only knowledge of the negotiations was derived from the agents of the bondholders. After the purchase of the bonds, and before foreclosure, defendants, wishing complainant's assistance as receiver, in working one of the roads, which he was slow to give, applied to the persons from whom they purchased the bonds to urge him to take action. Meanwhile he wrote letter! entirely inconsistent with his claim to be a partner of defendants. It also ap peared that shortly after assuming control of the road, and at a time when, as he testified, he proposed to enter into the contract with defendants, he canceled contracts which one of the defendants held with the roads. and which were very advantageous to defendants and prejudicial to the road. Held, that the evidence did not show that the contract had ever been made.

In Equity. On bill for accounting.

Beam & Cooke and Hiler H. Horton, for complainant.

Geo. B. Young, H. R. Bigelow, I. V. D. Heard, and M. D. Grover, for defendant Hill.

BREWER, J. The original bill in this case was filed on November 13, 1880. It alleged a contract, and sought an accounting. An amended bill having been filed on December 15, 1880, the defendants, Kittson and Hill, filed a plea thereto, which was sustained in this court on the hearing before Judges TREAT and NELSON. 4 McCrary, 138, 14 Fed. Rep. 114. Complainant appealed to the supreme court, and, the case having been twice argued before that court, the judgment of this court was reversed, and the case remanded, with instructions to overrule the plea, and direct the defendants to answer. 120 U. S. 303, 7 Sup. Ct. Rep. 534. Thereafter an answer was filed, testimony has been taken, and the case argued, and now submitted upon the pleadings and proofs. v.39F.no.11-33

The decision of this court on the plea was to the effect that the contract alleged in the bill, if made, was one against public policy, and could not be enforced. The case in the supreme court passed off on a question of pleading, and the decision there, in no manner settling the question whether the contract as alleged was one which could be enforced or not, simply determined that the equities of the bill could not be considered upon a plea, and that a question of fact put in issue by the plea and replication, found for the complainant, compelled the overruling of the plea. So, at the end of nine years, the case now comes before me for decision, with no substantial question of law or fact settled. A brief statement of the questions presented is this: In 1876, complainant was, by appointment of this court, receiver of the property of the St. Paul & Pacific Railway, and also general manager of the lines of the First Division of the St. Paul & Pacific Railway Company, under the company, and subsequently under the trustees in certain mortgages in possession thereof. Several series of mortgage bonds were outstanding, largely owned and held in Holland. Complainant alleges that he and the defendants, Kittson and Hill, entered into an agreement for the purchase of these bonds, or a majority thereof, and the use of the same in the purchase of the road in the foreclosures of the mortgages. These defendants were to procure the funds necessary therefor, and the complainant to furnish facts, information, and assistance. Certain it is that the bonds were purchased by the defendants, Hill and Kittson, with two associates, foreclosures consummated, and the railway properties acquired. The question of fact, then, is whether such an agreement as alleged was entered into, and the question of law, whether, if made, it can now be enforced in a court of equity.

In reference to the question of fact, it may be premised that the complainant, Mr. Farley, and his then assistant in the management of the roads, Mr. Fisher, testify that an agreement was made substantially as alleged in the bill, while defendant Hill as positively denies the same. Defendant Kittson died before his testimony could be taken. Inasmuch as, according to complainant's testimony, only four persons were present at the making of the agreement, namely, Messrs. Farley, Fisher, Hill, and Kittson, the case, so far as respects the direct testimony rests upon three witnesses, two affirming and one denying; one of those affirming and the one denying being pecuniarily interested, and their interests opposed, while the other affirming has, so far as appears, no direct pecuniary interest. This, upon the direct testimony, leaves the preponderance in favor of the complainant; but where there is a square contradiction between witnesses of apparent credibility as to a principal fact like this, the solution is not always reached by a process of mathematics, a mere counting of the number of witnesses, but often requires a careful examination of all surrounding circumstances. In this case inquiry must be directed to the inherent probability, under the circumstances surrounding the parties, of the making of such an agreement; to the conduct of the parties prior and subsequent to that time; to any contradictions and supports which their respective stories may receive from other and un

disputed facts; and to any statements, oral or written, inconsistent with their direct testimony. The testimony is voluminous, comprising nearly 2,000 printed pages, and with this testimony, in the various ways indicated, counsel for the opposing parties have striven to support their respective claims. It is not pretended that there was any written contract. Messrs. Farley and Fisher testify that at an interview which lasted about two hours the agreement was entered into, and its terms fixed.

Inquiry naturally runs, in the first place, to the situation of the parties and the subject-matter of the agreement at the time it is claimed to have been made, and the probabilities in view of such situation of the parties entering into such an agreement. Two corporations existed,―one, the St. Paul & Pacific Railway Company; the other, the First Division of the St. Paul & Pacific Company. Each owned a land grant. The First Division had two lines completed and in operation,one, 76 miles in length, known as the "Branch;" and the other 207 miles long, and known as the "Main Line." The St. Paul Company had one line of about 60 miles graded and partly ironed, and another of about 310 miles on which 139 miles was completed. In addition, some work of grading had been done on this last line. So that there was over 400 miles of completed road, several miles partially completed, and a land grant. These various properties were mortgaged in several mortgages, amounting in the aggregate to $28,000,000. Some of the bonds secured by these mortgages had been taken up in the payment of lands sold, and possibly all had not been negotiated, but the great bulk of this indebtedness stood against the property. The stock of the First Division of the company was mainly owned by Messrs. Litchfield, and of the St. Paul Company by the Northern Pacific Railway Company. The bonds had been largely negotiated in Holland, and these Dutch owners in 1873 appointed a committee to enforce their rights and protect their interests. This committee appointed J. S. Kennedy & Co., of New York city, as its agents. In 1873 there was a default in the payment of interest. Suit was brought in this court at the instance of Messrs. Kennedy & Co., and in August, 1873, this complainant was appointed receiver of the St. Paul Company's properties. He continued as such receiver until the final foreclosures and sales in 1879. The First Division Company's property remained in the possession of the company for some time after the appointment of Mr. Farley as receiver of the St. Paul Company, Mr. Becker being the president and person in charge. In 1875 an arrangement was made between the stockholders and bondholders of the First Division Company, by which the directory was constituted in the interest of the bondholders, and on March 13, 1876, Mr. Farley took possession of these properties as general manager for the company, temporarily, at least, controlled by the bondholders. The arrangement between the bondholders and stockholders did not work out as expected, and in October, 1876, the trustees in the mortgages took possession, continuing Mr. Farley as general manager for them. The agreement was made, according to complainant's testimony, during the year 1876, and while he was in the possession of the St. Paul Company's property as receiver,

and of the First Division Company's property as general manager. Farley was at the time a gentleman past 60 years of age, having spent most of his active life in the state of Iowa, engaged part of the time in mercantile enterprises and part in railroad business. Important trusts had been placed in his hands, and he had so managed these trusts as to win the confidence of those so placing them. He was selected by Messrs. Kennedy & Co., who had had experience in railroad matters in Iowa, to act as receiver of these properties in Minnesota, and their selection was approved by the circuit judge of this court, himself a citizen of Iowa, and doubtless familiar with Mr. Farley's reputation. Now, the agreement was, as claimed, to purchase the outstanding bonds, or a majority of them, and, as complainant expresses it, inherit the property at the foreclosure sales. It was Mr. Farley's duty as receiver not merely to preserve the property in his hands, but to so manage it as to make it as productive as possible, and so realize as much as possible for the bondholders. Is it probable that a man so situated, with his years of expe rience in railroad foreclosures, and owing such a duty to the bondholders, would enter into a secret arrangement with third parties for the purchase of the bonds,—an arrangement which made it for his interest to reduce the market price of the bonds? Is it probable that such a man would deliberately cloud the record of his life, and burden the discharge of official duty with the adverse and potent and ever-pressing weight of private pecuniary interests? The question we are now considering is not that of his present testimony, but, standing back in the year 1876, would it then have easily been believed that Mr. Farley had entered into such a contract? Supposing the situation changed, and in 1876 an effort had been made to remove him from the receivership on the testimony of two witnesses that he had made such a contract, he positively denying the same, would not the court have been slow to believe him guilty of such a dereliction of duty? Would not the presumption of innocence, strengthened by all the weight of a long life of probity, have borne strongly in his favor? Is the probability any less when it is he that affirms and another that denies? Nor is this a case where some merely technical rule is infringed,-something whose wrong only a legal mind can perceive. The commonest intellect is not too dull to perceive that such a contract produces a constant conflict between duty and private interests. Officially it was his duty to improve the property, and increase the value of the bonds; as a proposed purchaser it was his interest to deteriorate the property, and decrease the value of the bonds. So I affirm that all the probabilities make against the story of the contract. Again, looking further into the contract, it appears that complainant was to furnish no money and assume no pecuniary risk, all of the money to be furnished or procured by Messrs. Hill and Kittson, his contribution being limited to information, advice, and assistance. Now, the scheme was no trifle, and could not be carried into effect without large sums of money. A majority of twenty-eight millions of bonds cannot be bought for a song, even if they are sold at a large discount. In fact the prices at which they were bought ranged from 13 to 75 per cent. Now, it