"It has, however, been held, and rightly so, as I think, that where a seaman, hired for the outward and return voyage, was improperly dismissed by the captain before the service was completed, a recovery of wages by the seaman for the whole time was proper, deducting what he had otherwise received for his services after his dismissal and during the time for which his employer was bound to make payment. Abbott on Shipp. 4th Am. ed. 442, 443; Hoyt v. Wildfire, 3 Johns. 518; Ward v. Ames, 9 Ib. 138; Emerson v. Howland, 1 Mason, 51, 52.
"And upon the same principle, where a merchant engages to furnish a given quantity of freight for a ship, for a particular voyage, and fails to do so, he must pay dead freight, to the amount so agreed by him, deducting whatever may have been received from other persons, for freight taken in lieu of that which the merchant had stipulated to furnish. Abbott, 277, 278; Puller v. Staniforth, 11 East, 232; Puller v. Halliday, 12 Ib. 494; Kleine v. Catara, 2 Gall. 66, 73. Upon this principle, as I understand, the case of Shannon v. Comstock, 21 Wend. 457, was decided." "The views of the chancellor, as stated in the case of Taylor v. Read, 4 Paige, 571, are to the same effect, and the propriety of the rule seems to me too apparent to admit of doubt.
"In these cases it appeared, or was offered to be shown, that the plaintiffs had in fact performed services for others, and for which they had been paid, in lieu of those they had bound themselves to perform for the defendants, and which the latter had refused to receive. In Heck-scher v. McCrea, 24 Wend. 304, the court went a step further." . . .
"The principles established by the cases referred to seem to me just, and although I have found no case in which they have been applied to such an engagement as that between these parties, still I should have no hesitation, where the facts would allow it to be done, to apply them to such a case as this.
"But first of all, the defence set up should be proved by the one who sets it up. He seeks to be benefited by a particular matter of fact, and he should therefore prove the matter alleged by him. The rule requires him to prove an affirmative fact, whereas the opposite rule would call upon the plaintiff to prove a negative, and therefore the proof should come from the defendant. He is the wrongdoer, and presumptions, between him and the person wronged, should be made in favor of the freight to the whole amount, deducting whatever may have been received from other persons in place of what he agreed to furnish.1 latter. For this reason, therefore, the onus must in all such cases he upon the defendant.
"Had it been shown, in the case at bar, that the plaintiff, after his dismissal, had engaged in other business, that might very well have reduced the amount which the defendants otherwise ought to pay. For this the cases I have referred to would furnish sufficient authority. But here it appears that the plaintiff was not occupied during any part of the time from the period of dismissal to the close of the year.
"Again, had it been shown on the trial that employment of the same general nature and description with that which the contract between these parties contemplated had been offered to the plaintiff, and had been refused by him, that might have furnished a ground for reducing the recovery below the stipulated amount. It should have been business of the same character and description, and to be carried on in the same region. The defendants had agreed to employ the plaintiff in superintending a railroad from Albany to Schenectady, and they cannot insist that he should, in order to relieve their pockets, take up the business of a farmer or a merchant. Nor could they require him to leave his home and place of residence to engage in business of the same character with that in which he had been employed by the defendants."
1 Abbott on Shipp. 277, 278; Puller v. Staniforth, 11 East, 232; Puller v. Halliday, 12 East, 491; Kleine v. Catara, 2 Gallison, 66; Shannon v. Comstock, 21 Wend. 457.