Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-23
OREGON SUPREME
COURT DECISIONS
Continued from Page 81

dant, in making this settlement, paid
any more than plaintiffs were liable
for, no part of such excess should be
allowed him.
The defendant Carey appears to
have had contract for the towage of
the schooner Louis" from Knappton,
Washington, to San Francisco, and
alleges that she was under his care
at the time of the injury, and that
he was responsible for her safe tow
age. Under the agreement with plain
tiffs, Carey was interested in prevent
ing the threatened arrest and delay
of the Sampson" and the consequent
inconvenience of both plaintiffs and
defendant, and we think he had the
| right to pay in the first instance, any
such damage for which plaintiffs
might be liable, and to have such pay
ment adjusted in this action Indeed
we understand that payments are Of
ten so made in the maritime business:
The Santona, supra, and case in note
thereto; Brewster V. Warner. 1886
Mass. 81; White " Bascom, % Vt. 26S.
In the last named case, the hirers
of boat recovered against the own
ers of tug, engaged to tow the boat,
for damages sustained by loss of the
boat and cargo therein. The tug be-
ing negligently handled, the tow was
lost and the goods destroyed. The
plaintiffs owned neither the boat nor
the cargo but were the hirers of the
former. and had the custody of the
latter the goods being owned by a
number of persons who had entrust-
ed them to plaintiffs for carriage and
delivery The plaintiffs had not paid
the owners of the goods, and it was
held that nevertheless, they might re-
cover even though the general own
ers might also sue: see also The Jer-
sey City, Fed Rep. 527, and Chicago
& Alton Railroad Co. V. Kansas City
Suburban Belt Railroad Co., rs Mo.
245.
The, question as to who should
maintain this claim for damages is
one between Carey and the owners of
the Louis, as either the bailor or
ballee may in such a case, maintain
an action for redress, and recovery
for damages by either of them would
be a fun satisfaction, and a bar to
any subsequent action by the others
The Mercedes los Fed Rep. 500. cit
ing Story, Balm. Sec "a; The Nom
pareil, l49 Fed Rep. 521, 525. We
therefore conclude that 1t was error
for the trial court to reject the de-
fendants evidence of this claim.
The defendant contends that he
was entitled to deduction of the
charter hire, $500 per day, for all the
time he did not have the use of the
tug, on account Of the neglect of the
plaintiffs to have said tug staunch,
strong, and fitted and provided for
the service contemplated by the
agreement; or by reason of plaintiffs
not supplying competent crew: or
by reason of the improper manage
ment of the vessel; or by the want
of reasonable diligence on the part of
the crew; or in other words that
plaintiffs should not recover therefor
And he alleges that II was an error
for the court to instruct the jury in
effect to allow, for such loss, only
full days of "a hours each. The in
struction on this point being in part
as follows. Now II in the determin-
alton OF the evidence In this case II
you find that the defendant had the
use OF the Sampson at any time with
In period of "a hours, commencing
at 1890 O'Clock a. M, you will make
no deductions for any given day COW
ering that period Of time"