
    SCHULTZ AND MARKLEY’S CASE. Alexander H. Shultz et al. v. The United States.
    
      On the Proofs.
    
    
      The claimants call the captain and engineer of their boat to prove that the breakage of her engine was caused by her towing some government schooners two days previously. The witnesses state their opinions, but do not establish a character as experts. The right to recover depends on their testimony.
    
    Where tlie right to recover depends entirely upon the opinions of two witnesses as experts, their character as such must be satisfactorily established, and their testimony must be free from suspicion of interest, bias, or prejudice.
    Mr. H. L. Merriman for claimant:
    On the 31st day of December, A. D,, 1861, claimants entered into a contract with the United States “ to furnish, without unnecessary delay, after said 31st day of December, to the United States, at Georgetown, D. C., a good and suitable steam ferry-hoat, fitted and equipped in every waj,for the constant and successful crossing of the Potomac 
      
      river to and from Georgetown, in the District of Columbia, and Fort Corcoran, in the State of Virginia, and when in full operation the same should be accepted by the party of the first part.”
    By the terms of said contract, also, said boat was to be kept in condition to run continuously, at the expense of claimants, “ between the points as aforesaid, under the direction of the quartermaster’s department, of the army of the Potomac, who shall have control of the passengers and stores to be transported on said boat.”
    It was also agreed that claimants should be paid the sum of $115 for each and every day said boat was kept running, after she was put in full operation to the satisfaction of Brigadier General Stuart Yan Yliet, for the period of seven months from the commencement of her running, and as much longer as the department might direct.
    The steamboat Tallaca, owned by claimants, commenced running upon the route designated in said contract as a ferry-boat as early as the 9th day of January, 1^62, and so remained till the 1st of October, 1862.
    About the middle of April, 1862, said steamer was ordered by General Rucker to Mattawoman creek; while there, the captain of the boat was ordered to take in tow a number of other vessels, while the boat, the Tallaca, had on herself a heavy load of troops and horses.' This service was performed under protest by the captain, who alleged that the capacity of the boat was not sufficient for such work. Two days after, while with a load of corn, the engines of the Tallaca gave way almost entirely on a calm clear day, and the boat had to be towed to Washington for repairs.
    The cause of the break is stated by the engineer, an experienced one, to be the strain put upon the engine in towing the said schooners.
    By this wrongful act of the defendant, in imposing upon the plaintiff a labor entirely foreign to the contract, and which was duly protested against, the said defendant became liable in damages for the amount of money by which said wrongful act the plaintiffs were prohibited from earning by Ihe full execution of their contract.
    
      Harris vs. Johnson, 3 Cranch, 311; 1 Cond. R., 543.
    
      Cranmer vs. Graham, 1 Blackford, 406.
    The Assistant Solicitor for the government.
   Nott, J.,

delivered the opinion of the court:

In this case it is proved that the government compelled the plaintiffs’ steamboat, the Tallaca, to tow certain schooners, against the pro test of the captain; and it is claimed that this service (for which the Tallaca was not adapted) caused the breakage of her engine. It is conceded that the breakage was not instantaneous, hut in fact occurred some days afterward.

Such a fact ordinarily cannot he shown altogether by positive testi-timony, hut must rest to some extent on the opinion of experts. In this case it rests entirely upon the opinion of the captain and engineer of the boat. It does not appear that they were machinists, nor that they had any special knowledge of steam-engines beyond the use incidental to their profession. The character of an expert must be clearly and satisfactorily established before he can be allowed to testify as such; and when the testimony of a witness is nothing more than an opinion, he should be free from the suspicion of interest, bias, or prejudice. Neither of these witnesses comply with these conditions. The claimants have not called the machinists who repaired the engine, nor any professional engineer on whose opinion as an expert the court might rely; nor have they shown that the part of the engine which was fractured was a part peculiarly liable to be affected by the strain of towing the schooners. The amount sought to be recovered is large, and the evidence is not satisfactory. As these rules relating to experts are well known, we must infer that this omission to comply with them was not an oversight of counsel, but that no such evidence was offered by the claimants, because none such exists. We therefore dismiss the petition instead of restoring -the case to the docket.

The judgment of the court is that the petition be dismissed.  