Page:Federal Reporter, 1st Series, Volume 10.djvu/158

 14Q FEDSBAIi REFOBTBB. �Pabdee, g. J. This cause, tried and submitted at the last terra^ grows out of a charfcer-party entered into between the parties at the city of New Orleans on the eleventh day of August, 1879. The charter-party is in nearly the usual form, and only three quotations from it are neeessary to present the case as it stands before the court : �(1.) " This charter-ptirty, etc., between A. B. French & Co., agents for the owners of steam-ship Highbury, of the burden of 1,100 toas, or thereabouts, register measurements, due here between the tenth and twentieth of Septem- ber, of the flrst part," etc. (2.) " The said party of the second part doth engage to provide and furnish to the said vessel a full and complete cargo, say about •11,500 quarters of wheat in bulle, and pay," etc. (3.) " To the true and faith- ful performance of all and every of the foregoing agreements, we, the said parties, do hereby bind ourselves, our heirs, executors, administrators, and assigns, and also the said vessel's freight, tackle, and appurtenances, and the merchandise to be laden on board, each to the other in the penal sum of esti- mated amount of freight." �The evidence taken in the case shows that the Highbury arrived on time, say September 9th, and on the llth of September reported to the defendants as ready to comply with the terms of the charter- party. The defendants replied by Jetter on the 12th of September �as follows : �New Oeleans, September 12, 1879. �Jacoh Garson, Master 8. 8. Higlibury — Dear Sie : We have received jour notification stating that the S. S. Highbury, iinder your cbmmand, is ready for cargo, and have trans.niitted said notification to Messrs. Gordon & Gomilla, to whom we had sold the charter of said vessel These gentlemen return for answer that they decline to accept said vessel under said charter, on the ground that the actual tonnage is,greaterthan expressed in the charter. They further call upon us to deliver a steamer of the size mentioned, and we iilso call upon you to do the same. Yours, truly, �[Signed] J. B. Gamobs Si Co. �On the twentieth of September defendants wrote to the master of the Highbury declaring themselves released from the obligations of the charter-party, and calling for a similar steamer. The Highbury waited the neeessary time, and September 30th the master of the Highbury made public protest, which was served on the defendants, and thereafter the Highbury took on a cargo of cotton and oil cake, and sailed for Liverpool. The actual tonnage of the Highbury was 1,203 tons, and the ahip could carry about 11,500 quarters of wheat. A ship of 1,100 tons cannot carry over 9,500 to 10,000 quarters of wheat. It appears that in dealing with cargoes of wheat in bulk usage allows a margin of 10 per cent, either way, but lio more. The libellants demand judgment for the full amount of the estimated ��� �