Domenico v. Alaska Packers' Ass'n

• Decision Date: 09 December 1901
• Docket Number: 12,239.
• Citation: 112 F. 554
• Court: U.S. District Court — Northern District of California
• Parties: DOMENICO et al. v. ALASKA PACKERS' ASS'N.

112 F. 554

DOMENICO et al. v. ALASKA PACKERS' ASS'N.

No. 12,239.

United States District Court, N.D. California.

December 9, 1901

E. J Banning and Marshall B. Woodworth, for libelants.

Chickering Thomas & Gregory, for defendant.

DE HAVEN, District Judge.

This is a libel in personam, brought by a large number of persons to recover each the sum of $50, balance due for wages as fishermen and seamen, upon a contract alleged to have been entered into between them and the defendant corporation on May 22, 1900, at Pyramid Harbor, Alaska. The answer of the defendant sets forth three defenses: First, the defendant avers that the contract referred to in the libel is without consideration; secondly, denies that it executed such contract; and, for a third defense, it is alleged that the labor performed by the libelants was done under a contract other and different from that sued on, and that prior to the commencement of this action each of the libelants was paid the full amount due him, and in consideration thereof executed a release of all claims and demands which he had against the defendant. It appears from the evidence that on March 26, 1900, the libelants entered into a contract with the defendant, whereby they were employed to go as seamen for a voyage between San Francisco and Pyramid Harbor and return on board such vessel as might be designated by defendant; and also to work for the defendant at Pyramid Harbor during the season of that year as fishermen, 'or in any other capacity'; the libelants undertaking to do 'regular ship's duty both up and down, discharging and loading and to do any other work whatsoever when requested to do so by the captain or agent of the Alaska Packers' Association.' By the terms of this agreement the defendant was to pay each of the libelants $50 for the season, and 2 cents for each red salmon caught by him. On April 5, 1900, certain of the libelants signed shipping articles, by which they shipped as seamen on the Two Brothers, a vessel chartered by the defendant for the voyage between San Francisco and Pyramid Harbor, and also bound themselves to do for defendant the same work they were to perform under the previous contract; the defendant agreeing to pay each of them the sum of $60 for the season and 2 cents for each red salmon caught by him. Thereafter the libelants entered into the employment of the defendant, some under the first and the others under the second of these contracts, and proceeded on the Two Brothers from San Francisco to Pyramid Harbor, Alaska. Shortly after their arrival at that place they became dissatisfied, and refused to further perform the services called for by such contracts, unless defendant would enter into a neu agreement with them, binding itself to pay to each of the libelants for the same work the sum of $100 for the season, and, in addition thereto, the sum named in the former contracts for each red salmon caught. The defendant had $150,000 invested in the business conducted by it at Pyramid Harbor, and no other men could be engaged to take the places of libelants during that fishing season. Under these circumstances the superintendent of defendant yielded to what he deemed the unreasonable and illegal demands of libelants, and agreed in behalf of the defendant corporation to pay the additional sum demanded by them for the season's work. This contract was entered into May 22, 1900, and is the one sued on. It was signed in behalf of defendant by its superintendent or his clerk in the following words, 'By Alaska Packers' Association,' and delivered by the superintendent as the contract of defendant. Upon their return to San Francisco, October 6, 1900, the defendant through its proper officer, informed libelants that the contract of May 22, 1900, was executed without authority from defendant, and that it would not pay the increased compensation therein provided for them. After this notice, all of the libelants, and some of them after consulting counsel, accepted under protest the amount of wages stipulated for in the original agreement, and thereupon executed a release of all their claims and demands against the defendant.

1. It will be noticed that the principal subject of the contract upon the part of the libelants was for the rendition of services as fishermen at Pyramid Harbor, and included work in the cannery on shore, in preserving the fish caught by them, and also the labor of placing the fish on board the Two Brothers for transportation to San Francisco. The contract is, however, maritime in its nature. The fact that, while engaged in fishing at Pyramid Harbor, the libelants slept on shore, and mended their nets, and cared for the fish on shore, and that this was contemplated by the contract, does not make it any the less a maritime contract which a court of admiralty has jurisdiction to enforce. The Minna (D.C.) 11 F. 759.

2. The libelants claim that the defendant did not, as it agreed to do, provide them with serviceable nets in which an average catch of fish could be taken, and that because of defendant's default in this respect they were justified in refusing to perform their original agreement and in demanding the additional compensation provided for by the later contract of May 22, 1900. The contention of libelants that the nets provided them were rotten and unserviceable is not sustained by the evidence. The defendant's interest required that libelants should be provided with every facility necessary to their success as fishermen, for on such success depended the profits defendant would be able to realize that season from its packing plant, and the large capital invested therein. In view of this self-evident fact, it is highly improbable that the defendant gave libelants rotten and unserviceable nets with which to fish. It follows from this finding that libelants were not justified in refusing performance of their original contract. The defendant contends that, such being the fact, the contract sued on is nudum pactum; and it is urged in support of this claim that the promise of the defendant contained therein was simply a promise to pay to the libelants additional compensation for the precise work they were already under a legal obligation to perform by the terms of the prior agreement. It is an elementary principle of law that after a contract for the rendition of services or for the delivery of property has been completely executed by the party who agreed so to do, a promise made by the other to pay more for such service or property than the sum fixed by the contract performed would be without consideration. Clark, Cont. p. 192. The promise in that case would be simply a promise to make a gift, and could not be enforced. But when a contract remains wholly or partly executory, and the party who has obligated himself to render services or deliver property thereunder refuses performance unless paid more than he would be entitled to receive by the terms of such contract, whether in such case the agreement of the other to pay the increased price demanded in order to obtain precisely the same service or property stipulated for in the original contract would be without consideration is a question upon which the courts are not agreed. The following cases may be cited as in principle holding that such agreement would be without consideration: Vanderbilt v. Schreyer, 91 N.Y. 392; Ayres v. Railroad Co., 52 Iowa, 478, 3 N.W. 522; Harris v. Carter, 3 El. & Bl. 559; Frazer v. Hatton, 2 C.B. (N.S.) 512; Conover v. Stillwell, 34 N.J.Law, 54; King v. Railway Co., 61 Minn. 483, 63 N.W. 1105; Reynolds v. Nugent, 25 Ind. 328. The doctrine of these cases is expressed in the following extract from the opinion of the court in Vanderbilt v. Schreyer, 91 N.Y. 392:

'Pollock states the rule as follows: That 'neither the promise to do a thing nor the actual doing of it will be a good consideration if it is a thing which the party is bound to do by the general law, or by a subsisting contract with the other party.' Pol. Cont. 161; Crosby v. Wood, 6 N.Y. 369; Deacon v. Gridley, 15 C.B. 295. ' Nor is the performance of that which the party was under a previous valid, legal obligation to do sufficient consideration for a contract.' 2 Pars.Cont. 437.'

On the other hand, it has been held that when one who has bound himself to render services or deliver property under an existing contract refuses to do so unless paid more than the contract price, the parties may enter into a new agreement by which an increased price or compensation is to be paid for the same service or property, and that in such case the subsequent performance of the contract by the promisee is a sufficient consideration for the new agreement. Munroe v Perkins, 9 Pick. 298, 20 Am.Dec. 475; Peck v. Requa, 13 Gray, 408; Holmes v. Doane, 9 Cush. 135; Rollins v. Marsh, 128 Mass. 116; Rogers v. Rogers, 139 Mass. 440, 1 N.E. 122; Lawrence v. Davey, 28 Vt. 264; Moore v. Locomotive Works, 14 Mich. 266; Goebel v. Linn, 47 Mich. 489, 11 N.W. 284, 41 Am.Rep. 723. In my opinion, the cases just cited state the true rule. Upon principle it would seem that the parties to a contract have a perfect right to change or add to its terms for any reason which seems adequate to them, or they may entirely discharge...