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4. Was the contract between the plaintiff and defendant in writing? Ans. No.

Plaintiff testifies that he was 46 years old and had lived in Beaufort all of his life; that he was a sea-faring man for eight or ten years; that he had been a marine underwriter's agent since 1890, and that he was one at the time the steamship stranded; that he had had great experience with wrecks and he had been to a great many vessels; that he knew the Clyde Steamship Company; went to sea once in their ship; that its office is No. 5 Bowling Green, New York; that the City of Jacksonville wore the Clyde colors. There was a "6" on the flag fastened to the staff. The life preservers and buckets were branded "C. S. C." and also all the bed clothes, sheets and blankets, counterpanes, tableware and four boats. That he found the "City of Jacksonville" on Whalebone Inlet beach, Carteret County. She was stranded, pipes were leaky, reef was cut away. That he telegraphed the underwriters and the Clyde Steamship Co. at New York. That a telegram was brought him from the Secretary of the Boston Board of Marine Underwriters, saying: "Twenty-five thousand dollar hull, value thirty thousand. Protect. Advise me." He went to ship: sent Roberts and Mason there. That he went to New York to see Mr. Clyde; he saw Theodore Eger and Marshal Clyde. They told him to sit down and wait until Frank Clyde came. Frank Clyde is president of the Clyde line. He had a conversation with Marshal Clyde. Theodore Eger is general manager; talked with Eger, Marshal Clyde asked for a report of ship. He made the report and had a conversation about it. I said "I am going back to-night." Marshal Clyde said he wanted me to see Uncle Frank and his men and asked me did I want any money. I told him no. They told me to come in at nine o'clock next morning; went next morning. Eger was presI was told to sit down and be comfortable.


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surance people came in and the two Clydes, Marshal and Frank, Eger and Mather were all there. I explained the condition of the ship and they gave me a sheet of paper and I drew a map on it. They said "On what you say, we are going to get this vessel." Went in office and Marshall Clyde and Eger were present. Marshal Clyde asked me when I was going to leave and I said "to-night"; asked me if I wanted any money and I told him "no, I've got money and don't want it." Eger said "We want you to go down there and get the ship off; we care nothing for the framework, but want the hull and machinery." Plaintiff told them the people they contracted with could not get it; that they were fresh-water wreckers. Plaintiff said to Marshal Clyde "you are sending me with bare hands, I can't save it that way; persons there say I bother them; I will go there and advise with the master and keep you posted." Marshal Clyde said to plaintiff to "spend what was needed, and when the ship is out we will see you handsomely rewarded outside of what the underwriters pay you." Plaintiff went to and came from the ship; was engaged in all 230 days; services are worth ten dollars per day and expenses; expenses were $444.74; paid out that amount of money and has not been paid back, except $25. Plaintiff does not state who paid him the $25.

On crosss examination the plaintiff said he was the underwriter's agent; his first orders came from the Boston Board of Underwriters; he was employed by them. The ship did not go into the hands of underwriters but he made out a bill against the underwriters and owners and forwarded it to the Boston Board-that is the way it has to go. Eger was present at all conversations. He and Clyde both said that the contract for saving the vessel had been made with the Atlantic. Wrecking Company. He had a contract with the Clyde Steamship Company. The writing was to W. P. Clyde &


Co. He has written them, cannot say that all letters were so addressed. When he works for the underwriters it is for the owners; he had expected to get his pay of the underwriters; he brought suit in Philadelphia and in his complaint stated that the underwriters owed him; he signed the paper; he swore to this. Mather is Clyde's insurance adjuster and Clyde's agent, and made contract with the Atlantic Wrecking Co. When the ship was abandoned by the overseer the underwriters took charge. Plaintiff was sent there by the underwriters. It is the general custom of the ship to have her own furniture marked in the name of the ship and not in the name of the owner. Plaintiff rested and defendant moved to dismiss the complaint; motion denied and defendant excepted.

Defendant then introduced the deposition of A. J. Wil kinson, Enrollment and License Clerk in the Custom House of U. S. in New York. He produced a deed duly enrolled from the DeBary Merchants' Line of New York from the said "City of Jacksonville" to the DeBary Merchants' Line of New York City. He also introduced certificate of enrollment of said steamship by Marshal Clyde of New York, president. Defendant again moved the court for judgment of non-suit, motion denied and defendant excepted.

Rountree & Carr, for the petitioner.

Simmons & Ward, D. L. Ward and C. L. Abernethy, in opposition.

CONNOR, J., after stating the case: In the view which we take of the case it is not necessary to set out the defendant's prayers for instruction. The court charged the jury that they must find by the greater weight of the evidence that the defendant company employed the plaintiff, engaged his services to look after this wreck in their interest; that the contract to bind the company must have been made with some


one authorized to speak for it; that some officer engaged to look after its ships engaged the services of the plaintiff; that a general manager would have such authority, but it must be the Clyde Steamship Officer and not that of some other company or corporation; that they were not to give a verdict for the plaintiff because he rendered services to the "City of Jacksonville," but he must have done so under contract or appointment with the defendant company, and that the burden was on the plaintiff to show by a preponderance of the evidence that the defendant employed him. The defendant assigned as error the refusal of the court to non-suit the plaintiff, and to the charge as given.

The only question thus presented for our consideration is whether there was from a legal standpoint any sufficient testimony to be submitted to the jury to sustain the plaintiff's allegation that the defendant company made a special contract with him for services to be rendered at its request in saving and floating the steamship. The finding of the jury upon the first issue eliminates from the controversy any right of the plaintiff to recover as upon a quantum meruit based upon an implied promise to pay for services rendered, of which it received the benefit. So far as the testimony shows, the defendant company had no interest in the said steamship, nor did it receive any benefit whatever from the services of the plaintiff in saving and floating her. The plaintiff averred that the "defendant owned and operated the ship," but, in the issue submitted to the jury, the question is confined to the ownership. If the issue in regard to the ownership of the steamship by the defendant company had been answered in the affirmative, by reason whereof any benefit accrued to it from the services of the plaintiff it would have been liable for such services.

We are thus brought to the consideration of the single question whether there was any testimony fit to be submit


ted to the jury to establish an express contract of employment. In considering the case from this point of view upon the defendant's motion for non-suit, the testimony must be taken as true and considered in the light most favorable to the plaintiff. It will be well to keep in mind that so much of the testimony as referred to the steamship carrying the Clyde colors and of the life preservers and other property thereon being marked "C. S. C.", is eliminated from our consideration. This testimony was competent only upon the question of ownership which has been negatived by the verdict. The testimony in regard to the contract is indefinite and unsatisfactory. If, however, tested by the rules laid down by this court, it is of that character which the law denominates evidence, and not merely speculative or conjectural testimony, which is declared to be mere scintilla, it was the duty of the judge to submit it to the jury and their peculiar and sole province to pass upon it.

There is probably no more delicate duty imposed upon the judiciary than the application of the well settled rules and principles which have been adopted, in which it is sought to define the line which distinguishes testimony which should be submitted to the jury and that which should not.

Gaston, J., in Cobb v. Fogalman, 23 N. C., 440, says: "Although the boundary between a defect of evidence and evidence confessedly slight be not easily drawn in practice, yet it cannot be doubted that what raises a possibility or conjecture of a fact never can amount to evidence of it."

Rodman, J., in Wittkowsky v. Wasson, 71 N. C., 451, in discussing this question, quoting the language of the English courts, says: "It is not enough to say that there was some evidence; a scintilla of evidence would not justify the judge in leaving the case to the jury. There must be evidence from which they might reasonably and properly conclude that there was negligence," that being the fact to be estab

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