In Alaska Packers" Ass"n v. Domenico, 117 F. 99, 54 C.C.A. 485, this court affirmed the jurisdiction in admiralty the a contract make by men who acted as seamen to and from salmon fishing grounds in Alaska, to work as fishermen during the season, and also assist in canning fish on shore, and also in loading castle on board for transportation, and notwithstanding that the males while involved in fishing slept ~ above shore and mended their nets and also cared for the fish ~ above shore.

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117 F. 99 (9th Cir. 1902) ALASKA PACKERS" ASS"N v. DOMENICO et al. No. 789.

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United states Court of Appeals, ninth Circuit. May 26, 1902 Chickering & Gregory, because that appellant.

Marshall B. Woodworth and Edward J. Banning, because that appellees.

before GILBERT and also ROSS, Circuit Judges, and also HAWLEY, ar Judge.

ROSS, Circuit Judge.

The libel in this case was based ~ above a contract alleged to have actually been gone into into in between the libelants and the appellant coporation, group on the 22d job of May, 1900, in ~ Pyramid Harbor, Alaska, whereby it is declared the appellant promised to pay each of the libelants, among other things, the sum of $100 for solutions rendered and also to it is in rendered. In its price the respondent refuse the execution, top top its part, of the contract sue upon, averred the it to be without consideration, and also for a 3rd defense alleged the the occupational performed by the libelants for it to be performed under other and different contracts 보다 that sued on, and that, before the filing of the libel, each of the libelants to be paid by the respondent the complete amount due that thereunder, in factor to consider of which every of them executed a full release of every his claims and also demands versus the respondent.

The evidence shows without dispute that on in march 26, 1900, at the city and also county of mountain Francisco, the libelants entered into a composed contract v the appellants, by which they i agreeed to walk from mountain Francisco to Pyramid Harbor, Alaska, and also return, on board such courage as could be designated by the appellant, and to job-related for the appellant during the fishing season that 1900, at Pyramid Harbor, as sailors and fishermen, agreeing to do "regular ship"s duty, both up and also down, discharging and loading; and also to do any other occupational whatsoever when requested to do so through the captain or certified dealer of the Alaska Packers" Association. " by the regards to this agreement, the appellant to be to pay each of the libelants $50 for the season, and also two cents for every red salmon in the recording of i beg your pardon he took part.

~ above the 15th work of April, 1900, 21 that the libelants the the libelants signed shipping articles by which they shipped as seamen ~ above the 2 Brothers, a vessel chartered by the appellant for the voyage in between San Francisco and Pyramid Harbor, and also bound us to carry out the same job-related for the appellant provided for through the ahead contract of march 26th; the appellant agreeing to pay them therefor the amount of $60 because that the season, and two cents each because that each red salmon in the capturing of which they have to respectively take it part. Under these contracts, the libelants cruised on plank the two Brothers for Pyramid Harbor, where the appellants had about $150,000 invested in a salmon cannery. The libelants come there early on in April the the year mentioned, and also began come unload the vessel and fit increase the cannery. A couple of days thereafter, come wit, might 19th, they stopped occupational in a body, and also demanded that the company"s superintendent over there in charge $100 for services in operation the vessel to and from Pyramid Harbor, instead of the sums stipulated for in and also by the contracts; stating that unless they were paid this extr wage they would stop work-related entirely, and return to mountain Francisco. The evidence showed, and the court below found, the it was difficult for the appellant to gain other men to take the areas of the libelants, the place being remote, the season short and just opening; therefore that, after endeavoring for numerous days there is no success come induce the libelants to proceed with their occupational in accordance through their contracts, the company"s superintendent, top top the 22d day of May, so far yielded to your demands as to instruct his clerk come copy the contracts executed in mountain Francisco, including the indigenous "Alaska Packers" Association" at the end, substituting, because that the $50 and $60 payments, respectively, that those contracts, the sum of $100, which document, for this reason prepared, was signed by the libelants before a shipping commissioner whom they had requested to be carried from Northeast Point; the superintendent, however, testifying that he at the time told the libelants the he to be without government to go into into any type of such contract, or to in any way alter the contract made between them and the agency in san Francisco. Top top the return of the libelants to san Francisco at the near of the fishing season, castle demanded pay in accordance through the terms of the alleged contract of may 22d, as soon as the company denied the validity, and also refused come pay various other than as detailed for by the contract of march 26th and also April 5th, respectively. Several of the libelants, in ~ least, consulted counsel, and, ~ receiving his advice, those of them who had signed the shipping articles before the shipping commissioner at mountain Francisco went before that officer, and received the amount due castle thereunder, executing in consideration thereof a release in full, and also the others paid at the office of the company, additionally receipting in complete for your demands.

on the attempt in the court below, the libelants took on to present that the fishing nets provided by the respondent were defective, and also that it to be on the account the they demanded raised wages. On that point, the proof was considerably conflicting, and also the finding of the court was versus the libelants the court saying:

"The contention of libelants that the nets provided them to be rotten and unserviceable is not continual by the evidence. The defendants" interest forced that libelants should be listed with every facility crucial to your success together fishermen, for on together success depended the earnings defendant would have the ability to realize the season indigenous its pack plant, and the huge capital invested therein. In see of this self-evident fact, that is highly improbable that the defendant provided libelants rotten and also unserviceable nets with which to fish. It complies with from this finding the libelants were no justified in refusing performance of their initial contract." 112 F. 554.

The proof being high solution conflicting in respect to this facts, the conclusions the the court, who heard and also saw the witnesses, will certainly not it is in disturbed. The Alijandro, 6 C.C.A. 54, 56 F. 621; The Lucy, 20 C.C.A. 660, 74 F. 572; The Glendale, 26 C.C.A. 500, 81 F. 633. The Coquitlam, 23 C.C.A. 438, 77 F. 744; Gorham Mfg. Co. V. Emery-Bird-Thayer Dry products Co., 43 C.C.A. 511, 104 F. 243. The real questions in the instance as carried here are questions of law, and, in the view that us take of the case, it will be necessary to consider but one of those. Assuming the the appellant"s superintendent at Pyramid Harbor was authorized to make the alleged contract of might 22d, and also that he executed it on behalf of the appellant, to be it sustained by a sufficient consideration? indigenous the foregoing statement of the case, the will have actually been watched that the libelants agreed in writing, for particular stated compensation, come render their services to the appellant in remote waters where the season for conducting fishing to work is exceptionally short, and in which enterprise the appellant had a large amount that money invested; and, after having gone into upon the discharge of their contract, and also at a time when it was impossible for the appellant to secure other men in their places, the libelants, without any kind of valid cause, absolutely refused to continue the services they were under contract to perform unless the appellant would consent to pay them an ext money. Consent to such a demand, under together circumstances, if given, was, in our opinion, without consideration, because that the factor that it was based exclusively upon the libelants" covenant to render the precise services, and also none other, the they were currently under contract to render. The instance shows the they willfully and also arbitrarily damaged that obligation. Together a matter of course, they were liable to the appellant in damages, and it is quite probable, as suggested by the court listed below in the opinion, the they may have actually been unable to answers in damages. But we space unable come agree v the conclusions over there drawn, from this facts, in these words:

"Under such circumstances, it would be strange, indeed, if the law would no permit the defendant come waive the damages caused by the libelants" breach, and also enter right into the contract sue upon,-- a contract mutually useful to all the next thereto, in the it gave to the libelants reasonable compensation for your labor, and permitted the defendant to rental to advantage the huge capital it had actually invested in that canning and fishing plant."

Certainly, it can not be justly held, upon the record in this case, the there was any kind of voluntary waiver top top the part of the appellant the the breach that the original contract. The firm itself knew nothing of such breach till the exploration returned to mountain Francisco, and the testimony is uncontradicted that its superintendent in ~ Pyramid Harbor, who, it is claimed, make on its behalf the contract sued on, distinctly informed the libelants that he had actually no power to transform the original or to make a new contract, and also it would, that course, follow that, if he had no power to change the original, the would have no authority to waive any kind of rights thereunder. The scenarios of the current case lug it, us think, straight within the sound and also just observations of the can be fried court the Minnesota in the situation of King v. Railway Co., 61 Minn. 482, 63 N.W. 1105:

"No astute thinking can adjust the plain reality that the party who refuses to perform, and also thereby coerces a promise native the various other party come the contract to pay him an enhanced compensation because that doing that which the is legit bound to do, takes an unjustifiable advantage of the necessities that the other party. Surely it would certainly be a travesty on justice to host that the party therefore making the promise because that extra pay was estopped from asserting that the promise was without consideration. A party can not lay the foundation of one estoppel by his very own wrong, where the promise is merely a repeat of a subsisting legitimate promise. There can be no factor to consider for the promise the the other party, and there is no warrant for inferring the the parties have voluntarily rescinded or modified their contract. The promise cannot be legitimate enforced, return the other party has completed his contract in reliance top top it."

In Lingenfelder v. Unavoidable Co., 103 Mo. 578, 15 S.W. 844, the court, in holding void a contract whereby the owner of a building agreed to pay its architect an additional sum since of his refusal to otherwise continue with the contract, said:

"It is urged upon us by respondents that this to be a brand-new contract. Brand-new in what? Jungenfeld to be bound by his contract to design and supervise this building. Under the new promise, he was no to perform anything an ext or anything different. What benefit was to accrue come Wainwright? He to be to obtain the same business from Jungenfeld under the new, that Jungenfeld was bound to soft under the original, contract. What loss, trouble, or inconvenience could result to Jungenfeld the he had not already assumed? No quantity of metaphysical reasoning can readjust the plain fact that Jungenfeld took advantage of Wainwright"s necessities, and also extorted the promise of five per cent. ~ above the frozen refrigerator plant together the problem of his complying with his contract already entered into. Nor had he even the flimsy pretext the Wainwright had actually violated any type of of the conditions of the contract on his part. Jungenfeld himself put it ~ above the simple proposition that "if he, together an architect, placed up the brewery, and also another firm put up the refrigerating machinery, it would certainly be a detriment to the empire Refrigerating Company," of i beg your pardon Jungenfeld was president. To permit plaintiff to recuperate under such circumstances would be to offer a premium upon negative faith, and invite males to hurt their many sacred contracts the they may profit through their very own wrong. That a promise to salary a male for doing the which the is already under contract to execute is without factor to consider is conceded by respondents. The rule has to be so lengthy imbedded in the typical law and decisions of the highest possible courts the the assorted states the nothing but the many cogent factors ought to shake it. (Citing a long list of authorities.) but it is "carrying coals come Newcastle" to add authorities on a proposition for this reason universally accepted, and also so naturally just and right in itself. The learned counsel because that respondents do not controvert the general proposition. Castle contention is, and the circuit court agreed with them, that, when Jungenfeld declined to go additional on his contract, the defendant then had actually the best to sue because that damages, and not having chosen to sue Jungenfeld, yet having acceded come his demand for the extr compensation defendant cannot currently be heard to say his promise is without consideration. While it is true Jungenfeld ended up being liable in damages for the obvious breach that his contract, we carry out not think it adheres to that defendant is estopped from mirroring its promise to be made there is no consideration. It is true that as eminent a jurist as Judge Cooley, in Goebel v. Linn, 47 Mich. 489, 11 N.W. 284, 41 Am.Rep. 723, hosted that one ice company which had agreed come furnish a brewery v all the ice they can need because that their business from November 8, 1879, until January 1, 1881, at $1.75 every ton, and after that in May, 1880, declined to provide any much more ice uneven the brewery would give it $3 every ton, could recover ~ above a promissory note given for the boosted price. Profound as is ours respect because that the distinguished judge who ceded the opinion, we room still that the opinion that his decision is no in accord through the almost universally embraced doctrine, and also is no convincing; and also certainly so lot of the opinion as holds that the payment, by a debtor, of a component of his blame then due, would certainly constitute a defense come a fit for the remainder, is no the legislation of this state, nor, do we think, of any kind of other where the common law prevails. * * * What we hold is that, when a party merely does what that has currently obligated self to do, he cannot demand second compensation therefor; and also although, by taking advantage of the necessities the his adversary, the obtains a promise for more, the law will regard it as nudum pactum, and also will no lend its procedure to assist in the wrong." The case of Goebel v. Linn, 47 Mich. 489, 11 N.W. 284, 41 Am.Rep. 723, is one of the eight instances relied upon by the court below in support of its judgment in the current case, 5 of which space by the can be fried court of Massachusetts, one by the supreme court the Vermont, and also one other Michigan case,-- that of Moore v. Locomotive Works, 14 Mich. 266. The Vermont instance referred come is that of Lawrence v. Davey, 28 Vt. 264, i m sorry was one of the three situations cited by the court in Moore v. Locomotive Works, 14 Mich. 272, 273, together authority for its decision. In that situation there to be a contract to supply coal at specified terms and also rates. A portion of it was delivered, and also plaintiff then informed the defendant the he can not provide at those rates, and, if the last intended to take advantage of it, he must not deliver any kind of more; and also that he should supply no an ext unless the defendant would certainly pay for the charcoal independent the the contract. The defendant i agreeed to execute so, and also the coal was delivered. On suit being lugged for the price, the court said:

"Although the promise come waive the contract to be after some section of the charcoal sought to be recovered had actually been delivered, and also so ceded that most likely the plaintiff, if the defendant had actually insisted upon strict performance the the contract, can not have recovered anything for it, yet, nevertheless, the covenant to waive the contract, and the promise, and, above all, the delivery of coal after this covenant to waive the contract, and also upon the confidence of it, will certainly be a sufficient consideration to bind the defendant come pay for the coal currently received"

The theory of that situation was impliedly overruled through the supreme court of vermont in the subsequent instance of Cobb v. Cowdery, 40 Vt. 25, 94 Am.Dec. 370, where it was hosted that:

"A promise by a party to do what he is bound in law to carry out is no an illegal consideration, yet is the very same as no consideration at all, and is merely void; in other words, that is insufficient, but not illegal. Thus, if the understand of a ship promise his crew an addition to their addressed wages in consideration for and also as one incitement to, their extraordinary exertions throughout a storm, or in any other emergency the the voyage, this promise is nudum pactum; the voluntary performance of an plot which that was before legally incumbent top top the party to execute being in regulation an poor consideration; and so it would be in any other instance where the only consideration for the promise that one party was the promise that the other party to do, or his actual doing, miscellaneous which that was previously bound in legislation to do. Chit. Cont. (10th Am.Ed.) 51; Smith, Cont. 87; 3 Kent, Com.. 185."

The Massachusetts situations cited by the court listed below in assistance of its judgment commence through the instance of Munroe v. Perkins, 9 Pick. 305, 20 Am.Dec. 475, i beg your pardon really appears to it is in the structure of every one of the instances in support of that view. In that case, the plaintiff had actually agreed in composing to erect a structure for the defendants. Recognize his contract a losing one, he had actually concluded to abandon it, and resumed work on the oral contract that the defendants that, if he would execute so, they would certainly pay him what the work-related was precious without regard come the regards to the original contract. The court stated that even if it is the dental contract to be without factor to consider

-- "Depends totally on the concern whether the very first contract was waived. The plaintiff having actually refused to perform that contract, as he might do, subjecting himself to such damages as the other parties could show they to be entitled to recover, he afterward went on, ~ above the belief of the brand-new promise, and also finished the work. This was a adequate consideration. If Payne and

page 105.

Perkins to be willing to accept his relinquishment of the old contract, and also proceed ~ above a new agreement, the law, us think, would not avoid it."

The case of Goebel v. Linn, 47 Mich. 489, 11 N.W. 284, 41 Am.Rep. 723, presented some unusual and also extraordinary circumstances. But, acquisition it as developing the an accurate rule adopted in the Massachusetts cases, us think that not just contrary to the weight of authority, however wrong ~ above principle.

In enhancement to the Minnesota and Missouri cases over cited, the following are some of the many authorities holding the contradictory doctrine: Vanderbilt v. Schreyer, 91 N.Y. 392; Ayres v. Rail Co., 52 Iowa, 478, 3 N.W. 522; Harris v. Carter, 3 Ellis & B. 559; Frazer v. Hatton, 2 C.B. (N.S.) 512; Conover v. Stillwell, 34 N.J. Law, 54; Reynolds v. Nugent, 25 Ind. 328; Spencer v. McLean (Ind. App.) 50 N.E. 769, 67 Am.St.Rep. 271; Harris v. Harris (Colo. App.) 47 P. 841; Moran v. Peace, 72 Ill.App. 139; Carpenter v. Taylor (N.Y.) 58 N.E. 53; Westcott v. Mitchell (Me.) 50 A. 21; Robinson v. Jewett, 116 N.Y. 40, 22 N.E. 224; Sullivan v. Sullivan, 99 Cal. 187, 33 P. 862; Blyth v. Robinson, 104 Cal. 230, 37 P. 904; Skinner v. Mining Co. (C.C.) 96 F. 735; 1 Beach, Cont. � 166; Langd. Cont.� 54; 1 Pars.Cont. (5th Ed.) 457; Ferguson v. Harris (S.C.) 17 S.E. 782, 39 Am.St.Rep. 745.

It results from the views over expressed the the judgment should be reversed, and also the cause remanded, v directions come the court below to enter judgment for the respondent, through costs. That is therefore ordered.