
    William C. Holmes vs. Isaac S. Doane. The Same vs. The Same.
    A. agreed to carry B. in his vessel to California, if B., who was a carpenter, would do what worjc was necessary in preparing her for sea, and during the voyage. Before the vessel was ready for sea, A. refused to carry B., except on condition of his paying $25 and signing the shipping papers. B. signed the papers, and, at the same time, gave the shipping master a note for $25. On the day the vessel sailed, A. turned B. out of his vessel, giving as a reason the non-payment of the $25. B. brought an action for a breach of contract, and it was held, that A. might show that the original parol agreement was, subsequently and before the sailing of the vessel, modified by further stipulations entered into between the parties, and that such modified agreement needed no new consideration to make it the basis of future liabilities between the parties; that it was a question for the jury whether the shipping agent had authority to take the note of B. for $25, as cash, and so, whether the modified agreement had been fully performed byB.
    When the instruction to the jury is such that the ground upon which the verdict was rendered cannot be ascertained, it must be set aside.
    
      The first of these actions was for an alleged breach of con. tract in not giving the plaintiff a passage to California in the defendant’s brig Globe. It was tried in the court of common pleas, before Wells, C. J., who signed the following bill of exceptions.
    The plaintiff produced evidence tending to show (though the defendant denied the fact) a contract to ship the plaintiff to San Francisco, for his services as carpenter, in preparing the vessel for sea, and doing the work on her during the voyage, without requiring him to pay any thing; and that the plaintiff then went to work on the vessel, and continued so at work about fourteen days. It also appeared, by the plaintiff’s own witness, on cross-examination by the defendant, that he had signed the shipping papers, subsequent to the making of the above contract.
    Thereupon the defendant objected to any verbal evidence respecting the terms of the contract, but the judge overruled the objection.
    The defendant produced evidence tending to show that, at a subsequent time, he instructed the shipping master not to let the plaintiff sign without first paying twenty-five dollars, and that the plaintiff was, repeatedly, on several different days, informed of this by him, and made no objection or complaint, but promised to procure the twenty-five dollars, and in fact did, at the time of signing, give the master a note for that amount. Whether the master was authorized to receive the note, was a subject of controversy between the parties.
    On the day the vessel sailed, the defendant turned the plaintiff out of the vessel, giving as a reason the non-payment of the $25, the plaintiff objecting and refusing to go, and claiming a right to take passage in the vessel.
    There was testimony that the shipping papers, before the plaintiff’s signature, contained an agreement to give the plaintiff twenty-five cents wages per month; and there was no testimony that the contract, if any, to ship him without requiring any money payment from him, contained any such stipulation.
    The defendant contended to the jury, that the subsequent agreement was a waiver and abandonment of the former one.
    On this point the judge ruled and instructed the jury that, if the defendant originally contracted to ship the plaintiff without requiring him to pay any money, and the plaintiff had commenced work under such contract, and the defendant, afterwards, without any new consideration, imposed upon the plaintiff, as the condition of being permitted to take passage in the vessel, that he would, in addition to the original agreement, pay the sum of twenty-five dollars before shipping; and thereupon the plaintiff promised to pay such sum, such additional agreement would be without consideration, and not binding upon the plaintiff, and would leave him with the right of enforcing the original agreement.
    On the subject of damages, there was evidence that the plaintiff had spent time and money in fitting himself out for the expedition, and what would have been the cost of a passage out in some other vessel as a passenger, and what he would have had to pay for a passage, if he would agree to work as he had agreed with the defendant.
    The judge ruled that the general rule of damages was to allow the plaintiff what would have put him in as good a condition as if he had gone as agreed ; but not to reckon in this account his prospects in California.
    There was no objection made to the charge as not being sufficiently specific.
    The judge refused to rule that, if the plaintiff, by the original contract was to pay nothing, but afterwards, on the refusal otherwise to ship him, he agreed to pay the twenty-five dollars, but failed so to do, and such failure was the only reason for refusing a passage, the measure of the damages would be the twenty-five dollars.
    The jury returned a verdict for the plaintiff. To which rulings and omissions to rule, the defendant excepted.
    The second was an action of trespass, for carrying part of the plaintiff’s baggage to California, in the defendant’s vessel, and was tried in the court of common pleas with the preceding case.
    
      It came into this court on the following bill of excep* tions: —
    On the day the vessel sailed, the defendant ordered the plaintiff out of the vessel, and his chest of tools to be put on shore. That and some of the rest of his baggage was put on shore, but the rest was carried away.
    It was not contended by the defendant but that he was liable in this action, provided the preceding action was sustained, unless the judge should be of opinion that the damages claimed in this suit could not be the subject of a distinct action. The judge ruled that, if the defendant had not a right to turn the plaintiff out of his vessel, the defendant was liable in this action; but if he had, his liability depended on whether he gave the plaintiff reasonable time to get his baggage out of the vessel, after turning him out and before sailing; that, if liable, the measure of damages would be the cost of an outfit such as was carried away, unless the defendant was actuated by malice, in which case more might be'given.
    The defendant contended that the transaction of refusing to convey the plaintiff, and then afterwards carrying off his goods, was one transaction for which the plaintiff was entitled to full damages in the first action, and none in this; but the judge ruled that a separate action might be maintained for carrying away the baggage.
    To the foregoing rulings the defendant excepted.
    
      T. Willey, for the plaintiff.
    
      R. Choate and G. Minot, for the defendant.
   Dewey, J.

1. It was competent for the defendant to show that the parol agreement, made with the agent of the defendant, by the plaintiff, containing certain stipulations to be performed by the respective parties, in reference to the carrying the plaintiff to California, was, subsequently, and before the sailing of the vessel, modified by some further stipulations, entered into between the parties, and such modified agreement forms the basis of their future obligations as to the subject of the contract. Thus, the defendant might show that, at a period prior to the sailing of the vessel, he gave notice to the plaintiff that he would not comply with hia original agreement, and would hold himself responsible for all damages by reason of such breach of contract; and that the plaintiff, thereupon, elected not to avail himself of his right to recover damages therefor, but chose to make a new contract, giving the defendant more advantageous terms, and in consequence of which the defendant would agree to carry the plaintiff to California, and such new contract would be a valid contract between the parties. Nor is any new consideration, further than what exists, on the case supposed, necessary to give effect to this agreement, and make it the basis of future liability between the parties.

This principle is fully recognized in the cases of Munroe v. Perkins, 9 Pick. 298; Lattimore v. Harsen, 14 Johns. 330; Blood v. Enos, 12 Vermont, 625.

2. The shipping paper put into the case, leaves the matter of the payment of the" $25, too uncertain as to the party by whom it was to be paid, to give it the effect it might otherwise have, in excluding the parol evidence introduced by the plaintiff, as to the original parol agreement. The parol evidence of the plaintiff, if admissible at all, however, is, of course, liable to be controlled by other parol evidence of a modification of that agreement.

3. The question of the authority of the shipping agent to take the note of the plaintiff for $25, as cash, is a point yet open, and is to be left to the jury, under proper instructions. If received as payment, and under authority from the principal, the jury may find the modified agreement to have been fully performed on the part of the plaintiff; but, if it was a mere memorandum, or due-bill, with the understanding of all parties, that the same was to be paid in cash, before the party would be entitled to be carried to California, then the giving the note was not a payment of the $25; and if the evidence so establishes the fact, it may be so treated, assuming that the note has never been paid to the defendant, or negotiated by him. Verdict set aside and a new trial ordered.

Dewey, J. The second action was tried in connection with the other, under instructions from the court, one branch of which depended upon the questions raised and settled in the preceding case, that is, as to the right of the defendant to turn the plaintiff out of his vessel, by reason of his failure to pay the $25 already referred to. It being uncertain upon what ground the verdict for the plaintiff was found by the jury, the same must be set aside, and a new trial had.

New trial ordered  