Page:Federal Reporter, 1st Series, Volume 8.djvu/170

156 FEDBBAL BEPOBTSB. �3. Paetnership— Implibd Conditions. �It seems that the contract is one of partnersMp, and that one of the implied conditions of such a contract is that eitlier of the parties to it is at liberty to withdraw from the advehture whenever it becomes reasouably ceilaiu that it can no longer be prosecuted with success. i �4. RkSOISSION — ACQUraSCENCB. �It seems, further, that a letter written to the respondent on the dnte the order to return was received,in the ternis following : "1 very reluclautly com- plywith yoiir request. Tour views may be right, to a certain exteiit, as I am situated now, for we have seen sperm whales three times since we left Mahe Banks, but talcen no oil. I believe if we had been properly mauned we should have made a good show, although the chances were not the best. l shoiild aave Hked very much to have had a man, and taken the aeason o£E the river, then gone north, and flnished up the time as per agreement ; but as you think it best for all concerned that the ship shall return to New Bedford direct, 1 will bring her there as fast as wind and weather will permit," — amouuts to an acquies- cence in the rescissioa. �W, C. Parker, Jr., for libellant. �Marston e Cobh, for respondent. �Nelson, D. J. Libel in personam by the late master, against the managing owner and agent of the whaling ship Andrew Hicks, to recover damages for the alleged breach of a written contract signed by the parties, by which the libellant agreed "to proceed from the port of New Bedford to Mahe, Seychelle islands, by. steamer, and on his arrivai there take charge as master of the bark Andrew Hicks, and perform a whaling voyage in said bark, not exceeding three years in duration, and return with said bark to the port of New Bedford;" and the respondent, in consideratien of the libellant's services, agreed "to pay the said Brown the one-fiftieth lay or share of the net pro- ceeds of the cargo obtained by said bark during the term of his serv- ices as master thereof." At the date of the contract, August 24, 1877, the Andrew Hicks was on a whaling voyage in the Indian ocean, without a master, and in charge of her chief mate. �The libellant went to Mahe, as agreed in the contract, and took command of the ship on the thirteenth of December, 1877. After cruising in the vicinity of the Seychelle islands and the coast of Madagascar until the following June, occasionaily putting into Mahe, he then sailed for St. Helena, intending to proceed from there to the whaling gronnds off the river La Plata. Before sailing for St. Helena, his first and second mates had become dissatisfied and had been discharged, his fourth mate had been left behind sick at Mahe, nearly all his original crew had deserfced, and their places had been supplied from the natives of the islands, and his only remaining officer was Murray, the third mate. On his arrivai at St. ��� �