
    BERTRAND vs. FRAZIER.
    Eastern Dxst.
    
      June, 1837.
    APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT.
    The plaintiff will not be'allowed, even interest on an unliquidated claim when it arises on an express contract; much less will he be allowed an additional compensation to defray his expenses and trouble in bringing suit, on a claim arising from an implied or quasi contract.
    This is an action in which the plaintiff claims a salvage of one third of the value of the cargo, for stopping and making fast a flat boat loaded with corn, which was drifting down the Mississippi river, about seven leagues below the city of New-Orleans.
    The plaintiff alleges he was at much trouble and expense in hiring hands, and lost his time in saving the boat, which, in a few hours would have been entirely lost. That her cargo being valuable, he thinks that one third, or eight hundred dollars would be a reasonable salvage, which he claims as a privilege debt against the said boat and cargo.
    The defendant denied that the plaintiff had rendered him any service whatever ; and that the boat was not loose, or abandoned, or in danger, when taken into possession by the plaintiff.
    It was in proof that the boat in question being loaded with ten or twelve hundred barrels of corn, was cut loose from her moorings at the City of New-Orleans, and had floated about seven or eight leagues down the river, when she was stopped and landed by the plaintiff.
    A witness for plaintiff states, the flat boat was loaded with from fifteen to twenty hundred barrels of corn, worth one dollar and fifty cents per barrel, and the boat about sixty or eighty dollars. That the plaintiff and two slaves were from four o’clock in the morning until nine or ten o’clock before they succeeded in stopping said boat, and after she had floated down several miles with them. He was of opinion the plaintiff- had a right to one third of the corn and boat, because it is the custom established, and he values it so on account of the danger the boat was in being sunk by striking against the logs on the river sides, etc.
    A witness for defendant says, it is the custom about the English Turn, to claim and receive one third of empty flat boats and rafts picked up. That he knows of one person having received fifty dollars for saving a flat boat loaded with coal. He believes the plaintiff would have been satisfied with ten dollars, if defendant had been present and offered that sum to tow his boat ashore.
    The district judge was of opinion that as the plaintiff was required to bring suit to enforce his claim, that one hundred and fifty dollars would be a proper allowance ; although, if the defendant had offered fifty or sixty dollars at first he would have considered it sufficient. Judgment being rendered for one hundred and fifty dollars, the defendant appealed.
    
      Roselius, for the plaintiff.
    Preston, contra.
    
   Martin, J.,

delivered the opinion of the court.

The defendant is appellant from a judgment by which the plaintiff has been allowed the sum of one hundred and fifty dollars for having stopped the defendant’s flat boat, which was cut from the moorings during the night, and was floating down the river. He complains of the allowance as being excessive.

The plaintiff will not be allowed even interest on an unliquidated claim, when it arises on an express contract; much less will he be allowed an additional compensation to defray his expenses and trouble, in bringing suit on a claim “arising from an implied or quasi contract.

Our learned brother in the District Court, who had all the testimony before him, has expressed his opinion, that had the defendant offered to the plaintiff the sum of fifty dollars, he would have considered it as a sufficient compensation for the labor and service of the latter. Indeed, some of the witnesses thought that ten dollars would have been a reasonable allowance or remuneration.

It is difficult for us to conceive how an addition of two hundred per cent was thought proper to be added to a fair compensation, in order to balance the trouble and expense the plaintiff was put at in bringing the suit.

■ Had the plaintiff’s claim arisen upon an express contract, which did not liquidate it, and had the court allowed interest at the rate of five per cent, a year as a compensation to the plaintiff for his trouble and expense in prosecuting his claim to judgment, it would have been our duty to relieve the defendant from the charge.

It is difficult for us to see how a claim upon an implied or quasi contract like the present, can authorize an excessive allowance of two hundred per cent. There is no case in which the plaintiff has a less right, (if he has any) to remuneration for the trouble and expense of litigation.

It is, therefore, ordered, adjudged and decreed, that the ' judgment of the District Court be annulled, avoided and reversed; and that the plaintiff recover from the defendant the sum of fifty dollars, with the costs of the District Court, and that he pay those of the appeal.  